Sahebdas Sakharam Borkar vs Mah. Rural Edun. Society, Thr. ...
2017 Latest Caselaw 1651 Bom

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

                    Writ Petition No.3292 of 2009


  Sahebdas Sakharam Borkar,
  R/o Puyar, Post Wadegaon,
  Tah. Arjuni Morgaon,
  Dist. Bhandara.                                   ... Petitioner

       Versus

  1. Maharashtra Rural Education Society,
     Lakhandur, through its Secretary,
     R/o Lakhandur,
     Dist. Bhandara.

  2. The Headmaster,
     Dr. Babasaheb Ambedkar Vidyalaya
     & Jr. College, Lakhandur,
     Dist. Bhandara.

  3. The Education Officer (Sec.),
     Zilla Parishad, Bhandara.

  4. Deputy Director of Education,
     Nagpur Division, Nagpur.                       ... Respondents


  Shri P.N. Shende, Advocate for Petitioner.
  Ms   Prachi   Joshi,   Advocate,   holding   for   Shri   G.N.   Khanzode, 
  Advocate for Respondent Nos.1 and 2.
  Shri   K.L.   Dharmadhikari,   Assistant   Government   Pleader   for 
  Respondent Nos.3 and 4.




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               Coram : R.K. Deshpande, J.

th Date : 12 April, 2016

Oral Judgment :

1. The School Tribunal, Nagpur, has dismissed Appeal

No.STN/252/1995 by its judgment and order dated 8-12-2008

challenging the order of termination dated 26-7-1995. Hence,

the employee terminated from the post of Assistant Teacher is

before this Court in this petition.

2. The School Tribunal records the finding on a preliminary

issue that the appointment of the petitioner as untrained

graduate teacher on 1-7-1986 was legal and valid, but ultimately

dismisses the appeal challenging the termination, holding that the

petitioner was appointed afresh on 22-6-1994 as Junior College

Lecturer for a period from 1-7-1994 to 30-4-1995, i.e. on purely

temporary basis for a specific period of one academic session. It

further holds that in view of this event, the petitioner himself has

waived his right to the post of Assistant Teacher. It holds that the

Deputy Director of Education rejected the approval to the

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appointment of the petitioner as Junior College Lecturer on the

ground that he was not qualified for appointment to the said post.

It further holds that the petitioner did not possess the requisite

qualifications for the post of Junior College Teacher, as laid down

in Schedule-B in the Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981 ("the MEPS Rules").

3. The petitioner claims that he was initially appointed on

1-7-1986 as untrained graduate teacher, and at that time, he was

holding Master's Degree in Arts, i.e. M.A. The said order of

appointment is not placed on record of the School Tribunal. It is

also not placed on record of this Court. The petitioner has placed

on record the order of appointment dated 8-8-1987, by which he

was appointed as Assistant Teacher on purely temporary basis for

the Academic Session 1987-88. He claims to have obtained

training qualification on 20-5-1994, and relying upon the

provision of Rule 6 of the MEPS Rules read with the Government

Resolution dated 10-2-1994, it was claimed before the Tribunal

that he was entitled to regularization in service upon obtaining

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B.Ed., i.e. training qualification. In this background, the Tribunal,

relying upon the order dated 22-6-1994, produced by the

Management, holds that the appointment of the petitioner was

afresh as Junior College Teacher on purely temporary basis from

1-7-1994 to 30-4-1995, and the earlier service rendered on the

post of Assistant Teacher has been waived by the petitioner.

4. Even if the contention of the petitioner is accepted that

the Tribunal committed an error on the factual aspects, holding

that the petitioner was appointed afresh by an order

dated 22-6-1994 as Junior College Teacher on temporary basis,

still he cannot succeed unless he satisfies the Court that either he

was to be regularized in service by granting benefit of Rule 6 of

the MPES Rules read with the Government Resolution

dated 10-2-1994, or that his initial appointment is to be treated

as on probation, and having continued beyond the maximum

period of two years of probation, he acquires deemed

confirmation in service in terms of sub-section (2) of Section 5 of

the Maharashtra Employees of Private Schools (Conditions of

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Service) Regulation Act, 1977. In order to succeed in this

petition, it is not enough for the petitioner to demonstrate that

the findings recorded by the Tribunal dismissing the appeal

suffered from the error apparent on the face of the record, but he

has to satisfy this Court on merits of his claim made before the

Tribunal.

5. Perusal of Rule 6 of the MEPS Rules shows that the

Education Officer may permit the Management to appoint

untrained graduate teachers in Secondary Schools in exceptional

circumstances, such as non-availability of trained graduates, and

such appointment has to be on year to year basis, on the clear

understanding that such appointee will have to obtain training

qualification at their own cost and further subject to the condition

that their services shall be liable to termination as soon as a

trained graduate teachers become available.

6. What is required to be emphasized in the present case is

that the petitioner was required to come before the Court with a

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specific case - (i) that his appointment as untrained graduate

teacher was because of non-availability of trained graduates for

appointment, (ii) that the permission of the Education Officer

was obtained for making such appointment by the Management,

and (iii) that there was a clear understanding that the appointee

shall have to obtain training qualification at his own cost within a

stipulated period, else his services were liable to be terminated.

The petitioner has neither come to the Tribunal with such a case,

nor the Tribunal has adverted to any such aspects of the matter.

There is no case made out by the petitioner for grant of reliefs on

the basis of Rule 6 of the MPES Rules read with the Government

Resolution dated 10-2-1994.

7. Only two orders of appointments are placed on record.

As pointed out earlier, the first is dated 8-8-1987, indicating the

appointment on purely temporary basis for the Academic Session

1987-88, and the second is dated 7-6-1994 appointing the

petitioner as Junior College Teacher on temporary basis for the

period from 1-7-1994 to 30-4-1995. The petitioner has disputed

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this second appointment order dated 7-6-1994, and if that is

ignored, there is nothing brought on record to show that the

appointment of the petitioner as untrained graduate teacher was

for want of availability of trained graduate teacher and that the

Education Officer granted his permission for making appointment

of the petitioner as untrained graduate teacher. Merely because

the petitioner was permitted by the Management to obtain B.Ed.

qualification while in service, will not advance the case of the

petitioner to claim the benefit available under Rule 6 of the MEPS

Rules read with the Government Resolution dated 10-2-1994,

which extends the period of acquiring the training qualification

for in-service untrained graduate teachers up to 1-6-1995 so as to

get regularization in service. The petitioner cannot, therefore,

succeed to get the relief in this petition.

8. Even otherwise, when the petitioner was terminated

from service on 26-7-1995, he had rendered service as untrained

graduate teacher from 1-7-1986 on purely temporary basis for

one academic session and obtained training qualification on

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20-5-1994. There is nothing on record to show that the

appointment of the petitioner on 7-6-1994 was on probation for a

period of two years. The petitioner was aged about 40 years at

the time of termination of his service, and by now in the

year 2017, he crossed the age of superannuation of 58 years. On

this count also, the petitioner is not entitled to any relief.

9. In view of the foregoing discussion, the petition is

dismissed. Rule stands discharged. No order as to costs.

Judge.

Lanjewar