Bombay High Court
Mangesh Balkrushnaji Deshmukh vs Shri Vinayak Shikshan Sanstha ... on 1 September, 2016
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 1690 OF 2008
Mangesh Balkrushnaji Deshmukh,
aged about 31 years, Occ. Nil,
R/o. Hirulpurna, Tahsil - Chandur Bazar,
District - Amravati ...... PETITIONER
...VERSUS...
1.
Shri Vinayak Shikshan Sanstha,
Amravati, Sharda Vihar, Amravati,
through its President.
2. Shri Vinayak School, Marki,
Tahsil - Bhatkuli, Distt. Amravati,
through its Head Master.
3. The Education Officer,
Zilla Parishad, Amravati,
District-Amravati. RESPONDENTS
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Shri P.A.Gode, Advocate for Petitioner.
Ms. Deepali Sapkal, Advocate h/f Shri A.K.Kilor, Advocate for
Respondent no. 1
Shri B.M.Lonare, AGP for Respondent No.3
-------------------------------------------------------------------------------------------
CORAM: R. K. DESHPANDE, J.
st
DATE : 1 SEPTEMBER, 2016 .
ORAL JUDGMENT
1] This petition challenges the judgment and order
dated 29.07.2005 delivered by the School Tribunal, Amravati,
dismissing the Appeal No. 89 of 1999 filed by the petitioner
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under Section 9 of the Maharashtra Employees of Private
Schools (Conditions of Service) Regulation Act, 1977,
challenging his termination from service by an order dated
13.08.1999. The tribunal has held that the petitioner was not
qualified for being appointed as an Assistant Teacher in
terms of the qualification prescribed in the advertisement, his
appointment was purely on temporary basis against the post
reserved for Scheduled Tribe and Nomadic Tribe candidate
made for the reason of non-availability of such candidate and
hence, his initial appointment cannot be treated as on
probation so as to confer upon him deemed confirmation in
service.
2] Shri Gode, the learned counsel appearing for the
petitioner submits that it was the specific stand of the
management that the appointment of the petitioner as an
Assistant Teacher was against the post reserved for
Scheduled Tribe and Nomadic Tribe candidate and since the
candidate belonging to such category was not available, the
appointment of the petitioner from Other Backward Class
category should have been treated as on probation for a
period of two years. He has relied upon the decision of the
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learned Single Judge of this Court in case of Bhartiya
Buddha Dhamma Dnyan Vidyalaya and another vrs.
Presiding Officer, School Tribunal, Nagpur and others,
reported in 2010 (3) Mh.L.J. 177. He submits that the fact of
non-availability of the suitable qualified candidate from
Scheduled Tribe and Nomadic Tribe category has been
admitted and the appointment of the petitioner belonging to
the Other Backward Class Category on temporary year to
year basis has also not been disputed. He submits that in
terms of the decision of this Court, cited supra, the initial
appointment of the petitioner on 25.11.1997 should be
treated as a probation and the termination made on
13.08.1999 was not on the ground of unsatisfactory service
of the petitioner.
3] No doubt that the appeal filed by the petitioner
was defended by the respondents only on the ground that the
post was reserved for Scheduled Tribe and Nomadic Tribe
category and since the qualified candidate from the said
category was not available, the petitioner was appointed
purely on the temporary basis. However, unless the
petitioner satisfies this Court or the tribunal on the basis of
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his qualification, it cannot be said that the initial appointment
of the petitioner on 25.11.1997 should be treated as on
probation, which can only be terminated on the basis of
unsatisfactory service record. The initial advertisement
issued in the year 1997-98 in response to which the petitioner
applied for the post of Assistant Teacher indicated the
qualification for the post as H.S.C/S.S.C. D.Ed. Similar was
the qualification prescribed in the second advertisement
dated 16.06.1998. The Education Officer granted his
approval on year to year basis and in response to the
petition, the stand of the Education Officer is that the
petitioner was not possessing the qualification of S.S.C. D.Ed
and his appointment was against the post reserved for
Scheduled Tribe and Nomadic Tribe category.
4] In the decision of the Division Bench of this
Court in case of Darphale Yogita Jagannath and others
vrs. State of Maharashtra and others, reported in 2012 (2)
Mh.L.J. 823, cited by Shri Gode, the learned counsel for the
petitioner, it has been held in paragraph No. 20 that, "by no
stretch of imagination, a candidate with qualification of A.T.D
will be able to teach any other subject, except Arts subject
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and a teacher with A.T.D qualification cannot be equated with
the teachers with D.Ed/D.T.Ed. It further holds that if a
teacher with qualification of D.Ed/D.T.Ed is available, it may
not be necessary to appoint separate Arts Teacher with
qualification of A.T.D in a primary school run by the local
authority.
5] Undisputedly, the petitioner possesses the
qualification of H.S.C and A.T.D. It is thus clear and
undisputed position that the petitioner was not possessing
the training qualification for being appointed as an Assistant
Teacher. It is also not the case of the present petitioner that
he was appointed to teach the Arts subject. In the absence
of the training qualification being possessed by the petitioner,
his appointment cannot be treated as on probation. The
appointment as has been rightly held by the tribunal was
purely on temporary basis which did not confer any right
upon the petitioner for continuation on the post. Hence, no
interference is called for in the decision of the tribunal
In the result, the writ petition is dismissed.
JUDGE
Rvjalit
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C E R T I F I C A T E
"I certify that this Judgment/Order uploaded is a true and correct copy
of original signed Judgment/Order.
Uploaded by : R.V.Jalit, P.A. Uploaded on : 7th SEPTEMBER, 2016
