Bombay High Court
Namdeo Sukdeo Saptale vs The Chairman, Kai Ramchandra ... on 5 April, 2016
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10070 OF 2011
ALONGWITH
CIVIL APPLICATION NO. 804 OF 2016
Namdeo Sukdeo Saptale )
Age adult, R/o. Radde, Tal. Mangalwedha,)
District : Solapur ) ..... Petitioner
VERSUS
1. The Chairman,
)
Kai Ramchandra Patil Shikshan Sanstha,)
Kunikonur, Tal. Jat, Dist. Sangli ig )
2. The Headmaster, )
Shri Hudebada High School, )
Kunikonur, Tal. Jat, Dist. Sangli )
3. The Education Officer, )
(S) Z.P. Sangli ) ..... Respondents
Mr.S.G.Deshmukh, i/b. Mr.Abhijeet Kandarkar for the Petitioner.
Mr.Ramdas Shelke for Respondent nos. 1 and 2.
Ms.Vaishali Nimbalkar, A.G.P. for Respondent nos. 3 and 4.
CORAM : R.D. DHANUKA, J.
DATED : 5th APRIL, 2016
JUDGMENT
By this petition filed under Articles 226 and 227 of the Constitution of India,
the petitioner has impugned the order and judgment dated 17 th October, 2011
passed by the school tribunal thereby dismissing the appeal filed by the petitioner
impugning the order of termination dated 25th June, 2008 terminating his services
passed by the respondent nos. 1 and 2. Some of the relevant facts for the purpose
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of deciding this petition are as under :-
2. The respondent no.1 had established an aided school by name Shri
Hudebaba High School, Kunikonur, Tal. Jat, Dist. Sangli. The petitioner belongs
to the S.C. category. On or about 4 th January, 2006 the petitioner was appointed on
probation for a period of two years on clear permanent vacancy. On the date of the
appointment of the petitioner, the petitioner had already completed the required
qualification of B.A.B.Ed., B.P.Ed. Shiksha Visharad. When the respondent no.1
had started the said school in the year 1990, initially there was a division of 8 th
standard. During the next two years 9 th and 10th standards were set up. In the
academic year 1999-2000 the respondent no.1 management opened the division of
5th standard. In the year 2002, the said school became full fledged school having
5th to 10th standard. Since 2000, grant-in-aid has been granted to the 8 th to 10th
standard. Thereafter in respect of 5 th to 7th standard the school started receiving
partial grant-in-aid. There is no dispute that since year 2008, the school has been
getting 100% grant-in-aid.
3. There were three posts in D.Ed. category and 1 post in B.Ed. category in the
school run by the respondent no.1. After appointing the petitioner in the said post,
the respondent no.1 forwarded the proposal of the petitioner to the Education
Department for approval. The Education Officer passed an order refusing to grant
approval to the appointment of the petitioner on the ground that the petitioner was
not having qualification of D.Ed and was accordingly an untrained teacher. Based
on the refusal of the approval of the Education Officer, the respondent nos.1 and 2
passed an order of termination of the services of the petitioner by letter dated 25 th
June, 2008. This order of termination by the respondent nos. 1 and 2 came to be
challenged by the petitioner by filing an appeal (55 of 2008) before the School
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Tribunal, Kolhapur. The education officer filed an affidavit before the school
tribunal contending that since the petitioner herein belonged to the reserved
category having qualification of B.A.,B.Ed., B.P.Ed. and was appointed on D.Ed.
vacancy, in lieu of the judgment delivered by this court in Writ Petition No. 4159
of 1998 on 5th May, 2000, the candidate holding B.Ed. degree could not be treated
as the qualified teacher for a primary school.
4. Insofar as respondent nos. 1 and 2 management is concerned, it was
contended by them that the respondent no.1 school had appointed the petitioner on
probation for the standard 5th to 7th which were unaided divisions at the relevant
time. The management however admitted that the work and behaviour of the
petitioner was satisfactory. In the letter of termination issued by the respondent
nos. 1 and 2, it was however mentioned that the services of the petitioner was
terminated in view of the education officer refusing to grant an approval to the
appointment of the petitioner. The presiding officer of the school tribunal passed
an order dated 17th October, 2011 dismissing the appeal filed by the petitioner.
5. Mr.Deshmukh, learned counsel for the petitioner invited my attention to the
advertisement issued by the respondent no.1 management for the said post on
which the petitioner was appointed, the letter of appointment issued by the
respondent no.1 appointing the petitioner as assistant teacher for a period of two
years probation, the order passed by the education officer, letter of termination
issued by the respondent nos. 1 and 2 and the affidavits filed by the management
as well as the education officer before the school tribunal and various findings and
conclusions drawn by the school tribunal in the impugned order.
6. It is submitted by the learned counsel for the petitioner that the petitioner
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was admittedly appointed as an assistant teacher in the clear and permanent
vacancy. He submits that the petitioner belonged to the S.C. Category and was
possessing B.A.,B.Ed., B.P.Ed. Shiksha Visharad though was appointed in the post
reserved for D.Ed and was thus qualified and a trained teacher. He submits that
the education officer has not granted approval to the appointment of the petitioner
merely on the ground that the petitioner did not have D.Ed. qualification but had
B.Ed. degree. He submits that the management could not have terminated the
services of the petitioner on the ground that his appointment was not approved by
the education officer.
7.
Learned counsel for the petitioner invited my attention to the various
paragraphs of the impugned order passed by the school tribunal. He submits that
the school tribunal has considered the judgment of this Court in case of Jayashri
Chavan vs. State of Maharashtra, 2000(3) Mh.L.J. 605 which had taken a view
that the teacher holding qualification of B.Ed or B.P.Ed. could not be considered as
equivalent to D.Ed and cannot be considered as a trained teacher. My attention is
also invited to the judgment of Supreme Court in case of State of Maharashtra &
Ors. vs. Tukaram Tryambak Chaudhari & Ors., 2007 AIR SCW 1321. He
submits that the Supreme Court has considered this issue at great length and has
approved the judgment of this court delivered by Division Bench in case of
Kondiba s/o.Dattarao Mirashe vs. State of Maharashtra and others reported in
2003(2) Mh.L.J. 432. He submits that the Supreme Court in the said judgment has
held that the decision rendered by this court in case of Kondiba (supra) is closure
to the facts of that case. The Supreme Court noticed that the government
resolution dated 14th November, 1979 was not pointed out before the Full Bench in
case of Jayshri Chavan (supra) and accordingly the Full Bench of this court
rendered a conflicting view with regard to the eligibility of a graduate holding the
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B.Ed. degree to be appointed in the primary school. He submits that since the
order and judgment delivered by the school tribunal is based on the judgment of
Full Bench which is not approved by the Supreme Court in case of State of
Maharashtra vs. Tukaram Tryambak Chaudhari (supra), the judgment of school
tribunal deserves to be set aside on that ground alone.
8. Learned counsel for the petitioner also placed reliance on the judgment of
this court delivered on 12th March, 2008 in case of Govind Narayan Gunajal vs.
The State of Maharashtra & Ors. in Writ Petition No.6437 of 2007 and would
submit that the Division Bench of this court after considering the judgment of
Supreme Court in case of State of Maharashtra vs. Tukaram Tryambak
Chaudhari (supra), has categorically held that a person/individual qualified as
B.A.,B.Sc./B.Ed.,B.P.Ed., is entitled to be considered as trained teachers if he is
employed with primary schools with standards 5th to 7th. He also placed reliance on
the judgment of this court delivered by the learned Single Judge in case of Anil
B.Honmane vs. The Chairman, Kai Ramchandra Patil Shikshan Sanstha &
Ors. in Writ Petition No.2123 of 2010 dated 1 st December, 2011 holding that the
petitioner who held qualification of B.A.Ed. and who is appointed in D.Ed. scale
should be considered as trained teacher. He submits that this court after
considering the government resolution issued by the government dated 11 th
November, 2011 has set aside the order of termination of his services and directed
Education Officer to accord approval for appointment of the teacher holding
B.Ed.degree.
9. Learned counsel appearing for the respondent nos. 1 and 2 submits that there
is no dispute that the petitioner has been working in the school managed by the
respondent no.1 since the date of appointment till date and is qualified to be
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appointed as assistant teacher holding B.A.,B.Ed., B.P.Ed qualification. He
submits that service of the petitioner was terminated in view of the order passed by
the education officer refusing to grant approval to the appointment of the
petitioner. He does not dispute the proposition of law canvassed by the learned
counsel by the petitioner based on the judgment of the Supreme Court in case of
State of Maharashtra vs. Tukaram Tryambak Chaudhari & Ors (supra).
10. The learned A.G.P. appearing for the education officer however opposes this
petition on the ground that the appointment of the petitioner was made by the
management without obtaining prior approval of the education officer before
issuance of any advertisement. She submits that a copy of such advertisement was
not submitted before education officer when proposal for approval was filed by the
management. She submits that the school tribunal has considered this issue in the
impugned order and has rightly held that the appointment of the petitioner was not
approved by the education officer also on various other grounds and not only on
the ground that he did not have D.Ed qualification on the date of his appointment.
It is submitted by the learned counsel that the school tribunal rightly applied the
judgment of Full Bench of this court in case of Jayashri Chavan(supra).
11. Mr.Deshmukh, learned counsel appearing for the petitioner in rejoinder
would submit that the education officer has not rejected the approval to the
appointment of the petitioner on the ground that the respondent no.1 management
had not obtained any prior approval of the education officer before issuing any
advertisement for the said post of assistant teacher. He submits that the petitioner
has annexed a copy of such advertisement issued by the respondent no.1. It is
submitted that as no such issue was raised either by the management or by the
education officer before the school tribunal, the school tribunal on its own could
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not have considered any such issue without giving any opportunity to the
petitioner to deal with the same. It is submitted that in the order passed by the
education officer, the only ground for rejection was that since the petitioner did not
have qualification of D.Ed. on the date of his appointment in the school run and
management by the respondent no.1, the petitioner could not be considered as a
trained teacher. He submits that the education officer thus cannot be allowed to
supplement the reasons for not granting approval to the post of assistant teacher
across the bar before the school tribunal or before this court.
12. A perusal of the record indicates that the petitioner belonged to scheduled
caste and was already holding qualification of B.A., B.Ed., B.P.Ed. Shiksha
Visharad on the date of his appointment. The petitioner was appointed on the
probation for a period of two years on 4 th January, 2006 on clear and permanent
vacancy.
13. A perusal of the order passed by the education officer indicates that the
approval to the appointment of the petitioner to the post of the assistant teacher
was not granted merely on the ground that the petitioner did not have qualification
of D.Ed. and thus could not have been considered as a trained teacher. There is no
dispute that the order passed by the respondent no.1 thereby terminating the
services of the petitioner was only on the ground that the education officer had not
approved the appointment of the petitioner. In my view the services of the
petitioner could not have been terminated by the respondent no.1 management on
the ground that his approval was not granted by the education officer. There is no
provision in the provisions of M.E.P.S. Act for termination of services of the
teacher on the ground that approval is not granted by the education officer. In my
view the respondent no.1 thus could not have terminated the service of the
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petitioner on this ground.
14. Insofar as the reasons recorded by the school tribunal while dismissing the
appeal filed by the petitioner is concerned, a perusal of the said order indicates that
the school tribunal has rejected the appeal filed by the appellant mainly on the
ground that the Full Bench of this court in case of Jayshri Chavan (supra) has
taken a view that B.Ed. or B.P.Ed. qualification could not be treated as equivalent
to D.Ed. and since the appellant was not having qualification of D.Ed. at the time
of appointment, he could not have been appointed to the said post of assistant
teacher.
15. Supreme Court in case of State of Maharashtra vs. Tukaram Tryambak
Chaudhari & Ors (supra) has considered the government resolution issued by the
State Government dated 14th November, 1979 which described that the teacher
holding B.Ed. qualification also could be appointed in the post meant for D.Ed and
could be qualified as a trained teacher. Supreme Court held that the said
government resolution however was not brought to the notice of this court in case
of Jayshri Sunil (supra) and accordingly Full Bench took an inconsistent view.
The Supreme Court has approved the judgment of Division Bench in case of
Kondiba Dattarao Mirashe (supra) having found the said decision closer to the
facts of the case before the Supreme Court. The facts before the Supreme Court in
case of State of Maharashtra vs. Tukaram Tryambak Chaudhari & Ors (supra)
in my view are identical to the facts of this case and squarely applies to the facts of
this case. In my view since the judgment delivered by the Full Bench of this court
in cace of Jayshri Chavan(supra) is found inconsistent with the view taken by the
Supreme Court in case of State of Maharashtra & Ors. vs. Tukaram Tryambak
Chaudhari & Ors., the order and judgment of the school tribunal based on the
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judgment of Full Bench of this court thus deserves to be set aside.
16. The judgment of Supreme Court in case of State of Maharashtra vs.
Tukaram Tryambak Chaudhari & Ors (supra) has been also followed by Division
Bench of this court in case of Govind Narayan Gunajal vs. The State of
Maharashtra & Ors.(supra) and it is held that the person/individual qualified as
B.A.,B.Sc./B.Ed.,B.P.Ed., are entitled to be considered as trained teachers. In my
view the judgment of Division Bench of this court also squarely applies to the
facts of this case. Admittedly the petitioner was having qualification of
B.A.B.Ed., B.P.Ed. Shiksha Visharad on the date of his appointment and thus has
to be considered as a trained teacher on the date of his appointment. The learned
Single Judge of this court in case of Anil B.Honmane (supra) after considering
the government resolution dated 11th November, 2011 has held that the teacher
who held qualification of B.A.Ed. and who is appointed in D.Ed. scale should be
considered as trained teacher. In my view the said judgment of Single Judge of
this court in case of Anil B.Honmane (supra) also squarely applies to the facts of
this case and is binding on this court. Since the view taken by the school tribunal
is contrary to the law laid down by the Supreme Court and Division Bench and
single judge of this court, the same is contrary to the law and thus deserves to be
set aside. In my view the said Government resolution has removed the doubt that
the teacher who holds qualification as B.Ed. and is appointed in D.Ed. scale should
be considered as trained teacher.
17. Insofar as submission of the learned A.G.P. that the appointment of the
petitioner could not have been approved by the education officer also on the
ground that the management had not obtained prior approval of the education
officer before issuance of any advertisement is concerned, in my view the learned
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A.G.P. cannot be allowed to urge this submission across the bar at this stage. No
such reason is recorded by the education officer in the impugned order passed by
the education officer refusing to grant approval to the appointment of the
petitioner. The education officer had though filed an affidavit before the school
tribunal did not raise any such issue in the said affidavit. In my view the education
officer cannot be allowed to supplement the reasons across the bar or in the
affidavit in reply which were not recorded in the impugned order.
18. In my view the school tribunal thus could not have considered any such
alleged additional reasons in the impugned order for the first time without giving
any opportunity to the petitioner nor can I permit the education officer to render
such additional reasons across the bar for the first time in this writ petition.
19. In my view the letter of termination issued by the management and the order
passed by the school tribunal, order passed by the education officer being contrary
to law thus deserves to be set aside. I, therefore, pass the following order :-
(a) Impugned order and judgment dated 17th October, 2011
passed by the Presiding Officer, School Tribunal, Kolhapur is
set aside.
(b) Appeal No. 55 of 2008 filed by the petitioner (Ex.31) is
allowed in terms of prayer clauses (A) to (C). Termination
order dated 25th June, 2008 issued by the respondent nos. 1
and 2 is set aside. The order passed by the education officer
refusing to grant approval to the appointment of the petitioner
is set aside. Education Officer is directed to accord approval
to the appointment of the petitioner as trained teacher.
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(c) Rule is made absolute in the aforesaid terms. No order
as to costs.
(d) In view of the disposal of the writ petition, civil
application does not survive and is accordingly dismissed.
[R.D. DHANUKA, J.]
