Bombay High Court
Mahadu Shrwan Gaikwad & Ors vs State Of Maha & Ors on 20 December, 2017
Bench: S.P. Deshmukh
1 WP - 5348-2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5348 OF 2003
1. Mahadu s/o Shrawan Gaikwad
Age 46 years, occ. Service,
presently working as Assistant
Teacher in Shrirampur Education
Society High School, Shriramput,
Taluka Shrirampur, Dist. Ahmednagar.
2. Ramdas s/o Mhasu Dnawade,
Age 38 years, Occ. Service,
presently working as Assistant
Teacher in Shrirampur Education
Society High School, Shrirampur,
Taluka Shrirampur, Dist. Ahmednagar
3. Smita w/o Nandkishor Nirmal,
(Smit d/o Ganesh Lahade)
Age 41 years, occ. Service,
presently working as Assistant
Teacher in Shrirampur Education
Society High School, Shrirampur,
Taluka Shrirampur, Dist. Ahmednagar.
4. Bebinanda d/o Eknath Bhingardive
Age 35 years, occ. Service,
presently working as Assistant
Teacher in Shrirampur Education
Society High School, Shrirampur,
Taluka Shrirampur, dist. Ahmednagar.
5. Shirish S/o Laxman Suryawanshi,
Age 29 years, Occ. Service,
presently working as Assistant
Teacher in Shrirampur Education
Society High School, Shrirampur,
Taluka Shrirampur, Dist. Ahmednagar ...Petitioners
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2 WP - 5348-2003
Versus
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Maharashtra State, mantralaya,
Mumbai.
2. The Director of Education,
Maharashtra State, Pune.
3. The Deputy director of Education,
Pune Division, Pune.
4. The Education Officer (Secondary),
Zilla Parishad, Ahmednagar.
Dist. Ahmednagar.
5. Shrirampur Education Society,
Shrirampur, Tal. Shrirampur,
Dist. Ahmednagar,
Through its Chairman
Shri J.Y. Tekawade
6. The Headmaster,
Shrirampur Education Society
High School at Shrirampur,
Taluka Shrirampur, Dist. Ahmednagar ....Respondents
WITH
CIVIL APPLICATION NO. 16007 OF 2016
IN
WRIT PETITION NO 5348 OF 2003
(Nitin Vijay Thorat V. Mahadu Shravan Gaikwad and others)
...
Shri. S. R. Barlinge, Advocate for petitioners
Shri. S. K. Tambe, A.G.P. for respondent-State
Shri. R. N. Dhorde, Senior Counsel i/b. Mr. R.L. Kute, Advocate for
respondents 5 and 6
Mr. A.N. Kakade, Advocate for intervenor
...
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3 WP - 5348-2003
CORAM : SUNIL P. DESHMUKH &
SANGITRAO S. PATIL, JJ.
RESERVED ON : 12-09-2017
PRONOUNCED ON : 20-12-2017
JUDGMENT (PER - SUNIL P. DESHMUKH, J.) :-
1. Petitioners are before this Court seeking Mandamus to
respondents 1 to 4 viz. the State of Maharashtra, Director of
Education, Pune, Deputy Director of Education, Pune, Education
Officer (Secondary), Zilla Parishad, Ahmednagar to direct the
institution i.e. respondent no. 5 to implement Circular dated
09-07-1987 in letter and spirit and appoint the petitioners
accordingly and to give to them deemed date of appointment from
the date of their eligibility to be appointed to the post of trained
graduate teachers and to give them consequential benefits.
2. While issuing Rule in the present Writ Petition, the Court
had directed not to make further appointments in the school without
previous permission from the Court. Subsequently, there have been
quite a few Civil Applications filed by respondents no. 5 and 6 viz.
Civil Applications no. 12428 of 2005, 5725 of 2007, 7602 of 2008,
6405 of 2010 and 13587 of 2010 whereunder the respondent -
management had been permitted to fill in the posts making clear
4 WP - 5348-2003
that appointments of the new incumbents would be subject to the
result of the Writ Petition.
3. Respondent no. 5 runs respondent no. 6 school having
first to tenth standards and fifth to eighth standards are attached to
its primary section. According to petitioners, 75% teachers for
standards first to eighth shall possess S.S.C. D.Ed. educational
qualification and 25% shall be having educational qualification B.A.
B.Ed.
4. Referring to Circular dated 09-07-1987 issued by
Director of Education, learned counsel for petitioners submits in the
case of occurrence of vacancy of trained graduate teacher teaching
first to eighth standards and if trained graduate teacher working in
D.Ed. scale of pay is available, then, trained graduate teacher shall
not be appointed from outside or open market but should be picked
up from the employees, who is trained graduate teacher working on
D.Ed. scale of pay, and be paid salary of trained graduate teacher
appointing him in the 25% posts strictly meant for such employees.
5. Learned counsel for the petitioners during the course of
hearing, referred to decision of the Government dated 21-05-1979
purporting to be a resolution wherein in non-government secondary
5 WP - 5348-2003
schools for standard fifth to seventh, the ratio of 25% : 75%
(graduates and undergraduates) should be fixed in relation to
general teachers. Prelude to the resolution refers to decisions and
letters dated 28-11-1977, 09-05-1978, and dated 27-09-1971,
whereunder after every three trained undergraduate teachers
employed to teach classes of standard fifth to seventh, fourth
teacher employed is to be graduate / trained graduate.
6. The petitioners' case is that they were appointed as
Assistant Teachers in the pay scale of trained undergraduate
teachers (as S.S.C. D.Ed. candidates). During the course of
employment, they had improved their qualifications and had
acquired Graduate Degree as well as Degree in Education.
7. Learned counsel appearing for petitioners refers to
clauses 3 and 4 of circular dated 09-07-1987 and contends that the
same are mandatory. Learned counsel goes on to submit that the
circular further clarifies that in case of vacancy of teachers occurring
for eighth standard to tenth standard, subjectwise number of trained
graduate teachers working in D.Ed. scale are expected to be picked
up from amongst such trained graduate qualified teachers in the
subject and if such an employee is not available, with the prior
permission of the Education Officer, such appointment can be made
from open market.
6 WP - 5348-2003
8. He contends, petitioners' representations to
management as well as to the Education Officer, their legitimate
requests in respect of their claim to hold the posts in 25% for
trained graduate teachers, pursuant to various decisions of the State
Government reflected in the resolutions and in the circulars issued
from time to time, were not being attended to and were being
ignored.
9. Learned counsel makes a grievance that despite the
position being as aforesaid, respondent no. 5 - management had
appointed about 11 teachers from open market from the date on
which the first petitioner had acquired qualification of trained
graduate teacher.
10. It is contended that the Education Officer ought to have
objected to such appointments having regard to circular dated
09-07-1987. The Education Officer had, however, communicated
that while granting approval to direct recruits, this aspect would be
considered if the teachers are having qualification in relevant
subject.
7 WP - 5348-2003
11. While petitioners had been making representations, yet,
respondent no. 5 purported to issue an advertisement on
28-02-2002, thereupon, the petitioners had requested the
management to consider them for absorption / appointment having
regard to acquisition of requisite qualifications by them.
12. Learned counsel further refers to that as respondent
no. 5 had not been taking up their legitimate cases for such
absorption / appointment, they had been before this Court in Writ
Petitions bearing no. 1246 of 2000, 1249 of 2000, 1585 of 2003,
1586 of 2003 and 1527 of 2003. Said Writ Petitions were disposed
of by the High Court under orders dated 22-04-2003, observing that
the Education Officer to take a decision on the representations in
accordance with law and on its own merits.
13. It is further submitted that after disposal of aforesaid
Writ Petitions, a detailed representation to the Education Officer had
been made pointing out the circular and the relevant clauses and
referring to the persons, who were appointed by respondent no. 5
from open market. Further grievance is made by petitioners that
disappointingly, it has been communicated by the Education Officer
that the circular does not specifically mandate that candidates
having trained graduate teacher's qualification be appointed from
8 WP - 5348-2003
such trained graduate teachers working on D.Ed. scale, purporting
further to observe that such appointments is the domain of the
management and while appointing teachers from eighth to tenth
standards, if the Government Order dated 10-07-2001 is not
followed, necessary action would be taken while considering
approval to such appointments.
14. According to learned counsel, proper appreciation of
circular dated 09-07-1987 would reveal that it mandates that
vacancies of trained graduate teachers for fifth to seventh standards
shall be filled in from the staff working on D.Ed. scale possessing
trained graduate teacher's qualification and the same also provides,
for eighth to tenth standards, such teachers who are working on
D.Ed. scale and have acquired qualification of trained graduate
teachers, then, they must be considered. Even in case, if the
management desires to appoint teachers for eighth to tenth
standards in particular subject, if the trained graduate teacher
working in D.Ed. scale is not available to teach that particular
subject, then alone the management would be able to have a
candidate from outside but that too with prior permission from the
Education Officer.
15. It is submitted that while appointing trained teachers
referred to in the representation dated 13-05-2003, the
9 WP - 5348-2003
management had not obtained prior permission of the Education
Officer. Learned counsel submits that the authorities are not doing
their bit and purport to act perfunctorily, may be, for extraneous
considerations, yet in the process, the deserving candidates like the
petitioners are met with injustice and are suffering.
16. Learned counsel further submits that quite a few
appointments suggest the same having been made for extraneous
considerations as persons not having proper qualifications have been
appointed, who would not be qualified to teach a particular subject.
He purports to refer to a couple of cases in this respect. According to
his instructions, one is not qualified to teach Hindi subject whereas
the other happens to be a close relative getting inducted under
nepotism.
17. Learned counsel for the petitioners refers to and relies on
judgment of Supreme Court in the case of State of Maharashtra and others
Vs. Tukaram Tryambak Chaudhari and others, AIR 2007 SC (Supp.) 665. The
Supreme Court in the same, had observed thus :-
" 20. We have carefully considered the submissions made on
behalf of the respective parties. Having particular regard to the
fact that though standards 5 to 7 were attached to both primary
schools as well as secondary schools, these classes in fact,
represented the middle schools for which different standards
were being followed.
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21. Conscious of such disparity in respect of teachers who
are similarly situated but were treated differently on account of
their being attached to primary schools and/or secondary
schools, the State Government resolved to eliminate such
differences and to make provisions for trained graduate
teachers to be upgraded to a higher scale to the extent of 25%
of the posts. The said Resolution consciously refers to in
service graduate primary teachers who were eligible for
appointment to the posts in the increased pay-scale. In fact, one
of the conditions for appointment of in service graduate
primary teachers to the converted post carrying the higher pay-
scale was that such teacher should have obtained a degree in
Arts or Science and had also obtained a degree in education
namely, B.Ed. While adopting the aforesaid Resolution, the
Government was, therefore, fully aware of the fact there were
graduate teachers teaching in standards 5 to 7 in the primary
schools. This fact was also referred to by the Division Bench of
the High Court in its judgment under appeal. It has been
mentioned that one of the contentions raised on behalf of writ
petitioners was that in terms of Government Resolution dated
26th October, 1982, the petitioners were entitled to be
appointed and continued as trained teachers in B.Ed. scale.
22. As has been pointed out by Mr. Apte, the said
Government Resolution does not appear to have been brought
to the notice of the Full Bench which rendered its decision on
the reference made to it on the basis of the Maharashtra Rules
of 1981 in respect whereof conflicting views had been taken
with regard to the eligibility of a graduate, also holding the
B.Ed. degree to be appointed in a primary school. The
Resolution of 1979 was dealing with a situation which was
prior to the enactment of the said Rules and which
contemplated the existence and appointment of graduate
teachers in primary schools."
18. The background of the case appears to have been
referred to in paragraphs 2 and 3, reading thus:-
" 2. The private respondents in all these special leave petitions
had filed several writ petitions in the Bombay High Court
questioning the decision of the authorities to treat them as
Untrained Teachers although they were all graduate teachers
having B.Ed. qualification and approval having been granted
for their appointment as trained teachers. According to the said
respondents, they had all been appointed as Assistant Teachers
in Primary Schools which conducted classes up to the 7th
11 WP - 5348-2003
standard, from about the year 1988 onwards. It is only after a
decision was taken to treat them as untrained teachers, despite
being fully trained and qualified, that they were compelled to
move the several writ petitions which were all allowed by a
common judgment of the Bombay High Court dated 6th May,
2004.
3. The case of the writ petitioners before the Bombay High
Court was that they were all graduate teachers having B.Ed.
qualification and that they had been appointed to teach in
Primary Schools conducting classes up to the 7th standard. In
most of the cases, approval was granted for their appointment
as Trained Teachers. Subsequently, however, in 2001, they were
all informed on different dates that they would be treated as
untrained teachers and would be paid their salaries
accordingly. According to the writ petitioners, in terms of
Government Resolution dated 26th October, 1982, they were
entitled to be appointed and continued as Trained Teachers in
the B.Ed. scale. The respondents in the several writ petitions,
who are the appellants before us, had contended before the
High Court that B.Ed. qualification was not sufficient for being
treated as Trained Teacher in the Primary Schools and that
what was required was a D.Ed. qualification. It was contended
that before joining the school, the teacher concerned was
required to hold the qualification of S.S.C. and D.Ed. and that
the teacher was also required to acquire a graduation degree
while in service along with a B.Ed. degree."
19. Learned counsel has further referred to a case decided
by a Division Bench of this Court reported in 2003 (2) ALL. M.R. 951.
(Kondiba S/o Dattarao Mirashe Vs. State of Maharashtra and others)
20. Respondents no.5 and 6 have filed responses in 2003
and 2005 while the first was filed under the signature of the
chairman of the trust, it has been submitted in the same, the
management had issued advertisement inviting applications in
August, 2002 for appointments in three subjects, namely, Hindi,
Marathi and Physics - Chemistry.
12 WP - 5348-2003
21. For Hindi subject, applications from two streams were
received. Petitioners pursuant to the advertisement, had also
applied and the candidates who fared well in the process pursuant to
the advertisement were selected on the basis of merit. Accordingly,
Smt. Manisha Kardile had been appointed on 31-12-2002. It has
been specifically referred to that while petitioners had also applied,
their candidature was also considered, however, they could not
succeed in competition on merit. So, was the case in the case of
Marathi wherein Ms. Kale Kalpana Vyankatrao got selected on the
basis of merit. So far as Physics and Chemistry subject is
concerned, it has been contended that none of the petitioners holds
Bachelors degree in Science and, particularly, in Physics and
Chemistry. From the candidates who underwent the process,
candidature of Mr. Chavan R.R. had been found to be fit and
accordingly had been selected.
22. In response, thus, it is contended that the candidature of
petitioners in the process of selection of teachers for subjects
teaching in eighth to tenth standards, had not been found to be
meritorious. The petitioners are not entitled to make any grievance
contending that they should have been appointed on the said posts.
Management has followed due procedure for making appointments
13 WP - 5348-2003
of Assistant Teachers and petitioners claim that only them be
considered is not tenable and is devoid of any substance.
23. It is further submitted that while the appointments are
being made for divisions from eighth to tenth standards, the claim
on the basis of Government resolution dated 09-07-1987, is without
any substance. Even the Education Officer had given his no-
objection to such appointments being made. Education Officer has
also granted approval to the appointments made.
24. The respondent - Management further contends that in
the face of mandatory provisions of law under The Maharashtra
Employees of Private Schools (Conditions of Service) Regulation Act,
1977 (for short "The M.E.P.S. Act") and the Maharashtra Employees
of Private Schools (Conditions of Service) Regulation Rules, 1981
(for short "The M.E.P.S. Rules"), the Government resolution which is
pressed into service as the basis of the claim of the petitioners
cannot be relied upon.
25. It has been referred to that petitioners M.S. Gaikwad and
R.M. Dhanwade are not graduates with Hindi, Marathi or Science.
Mr. M.S. Gaikwad is B.A. with English and Dhanwade is B.A. with
History. Petitioners 1 and 2, as such, are not qualified to be
14 WP - 5348-2003
appointed. It is thus contended that petitioners cannot claim pay
scale of graduate teachers in 1:3 ratio. Appointments were made
for standards eighth to tenth. Even otherwise, according to
respondents, the petitioners have filed representations on
05-10-2003 and 17-10-2003. But the appointments were already
made in December, 2002. It has further been referred to that all
said teachers were appointed as Shikshan Sevaks in a fixed pay
scale pursuant to Government resolution dated 21-10-2003.
Petitioners were drawing salary in the range of Rs. 10000/- to
Rs. 12000/- per month.
26. In response of 2012, filed upon authorization of
respondents 5 and 6, it is contended that Writ petition suffers from
delay and laches as the petitioners have been working from 1980 to
1992 and grievance is being made by them in 2002.
27. In this response, Circular dated 09-07-1987 - Exhibit "A"
to the petition is referred to as letter rather than Government
resolution as referred to in the earlier response of 2004. It is
submitted that said letter is contrary to the M.E.P.S. Act and the
Rules thereunder. Service conditions of employees are governed
solely by the M.E.P.S. Act and the M.E.P.S. Rules and not by such
letter or Circular. Said letter / circular of 1987, is contrary to
15 WP - 5348-2003
provisions of Section 4 and 5 of the M.E.P.S. Act as well as Rule 6 of
the M.E.P.S. Rules. Teachers are to be appointed possessing
qualifications as referred to under Schedule 'B' to the rules.
Government had introduced a scheme of Shikshan Sevak due to
paucity of funds and under the same, every post falling vacant since
2002 was to be filled in pursuant to said scheme. According to the
same, advertisements have been given in newspapers and
appointments had been made. In the circumstances, only upon
acquisition of qualifications, petitioners cannot be appointed on a
trained graduate scale.
28. In the response, it is contended that mere improvement
in qualification, an employee would not be held entitled to be
appointed in 25% posts meant for graduate pay scale. It has been
denied in the same that management is interested in appointing
candidates from open market contending that management has to
appoint candidates according to provisions of the M.E.P.S. Act and
the Rules and pursuant to the Shikshan Sevak scheme. It is
contended that circular dated 09-07-1987 does not have force of
law.
29. It is further submitted that if petitioners want B.Ed.
scale, then, they would have to compete with other candidates from
16 WP - 5348-2003
open market. Direct appointment without procedure is not possible
in view of Section 5 of the M.E.P.S. Act.
30. Said response further refers to that petitioners had not
been eligible to be appointed on the posts which had fallen vacant
pursuant to Government resolution. It is denied that appointments
had been made for extraneous consideration
as alleged. The respondents refer to a chart annexed stating that
none of the petitioners is eligible to the post falling vacant.
31. Respondent no.4 - Education Officer, Secondary, Zilla
Parishad, Ahmednagar in his reply-affidavit, refers to that
respondent no.5 management had been issued instructions to
consider requirements under circular dated 09-07-1987. It has been
referred to that authority to make appointments and promotions as
per provisions of the M.E.P.S. Act and the M.E.P.S. Rules vests in the
School Committee and no grievance can be made against the
Education Officer in respect of the same for him not implementing
the circular. Respondent - management has been asked to appoint /
promote in-service B.Ed. teachers as graduate trained teachers as
per qualifications in the subjects. It has been referred to in the
same according to Rule 9(2) of the M.E.P.S. Rules, 1981 read with
schedule 'A', school committee is empowered to appoint teaching
staff.
17 WP - 5348-2003
32. Learned Senior Advocate Mr. R.N. Dhorde appearing for
respondent contends that the petition is wholly misconceived. It is
based on friable grounds. Very basis of the petitioners' claim,
namely, Circular / letter dated 09-07-1987 could not be taken into
account in the peculiar facts and circumstances of the present case.
Petitioners do not possess necessary qualifications for appointment
in the trained graduates pay scale in 25% category relied on by
them pursuant to circular dated 09-07-1987. According to learned
counsel, petitioners do not hold educational qualifications to enter
into the trained graduate pay scale in the post in which the
appointments have been made and which purportedly are cause of
action for the petitioners or for that matter, the posts which have
been duly filled in with the permission of this Court.
33. Learned Senior Advocate goes on to contend that
statutory provisions in the M.E.P.S. Act, particularly Sections 4 and 5
therein and the M.E.P.S. Rules, particularly, Rule 6 and Rule 9 govern
the field. While the appointments are to be governed according to
said provisions the claim for appointments made by petitioners on
the basis of so-called circular / Government decision has no legal
force nor has any sanctity and is not enforceable. Implementation
of such a circular in the face of provisions of law and rules is not only
18 WP - 5348-2003
not possible under regime of rule but would be patently illegal. He
submits that it is not the petitioners' case at all that the
appointments being made by the respondents are in contravention
of any provision of law or rule.
34. He submits that reliance on decision of the Supreme
Court in the case of Tukaram Trimbak Chuadhari (supra) is misplaced, for
it was a case relating to primary schools conducting classes upto
seventh standard and further the issue with regard to subjectwise
appointment for standards eighth to tenth had not been involved in
the same at all. As such, no reliance can be placed on the decision
wherein such a question had not arisen at all. He submits that 25%
reservation for appointments from trained graduates from D.Ed.
scale would come into play only if the petitioners would be in a
position to show that they hold qualification in the subject in which
appointments were being made. Said case is not applicable in the
present matter and can hardly be taken recourse to.
35. Learned Senior Advocate further goes on to submit that
a Full Bench of this Court in the case of Tanaji Madhukar Barbade V. State
of Maharashtra and others, 2011(1) All.M.R. 912, on reference has decided as
under:-
" 17. Perusal of the above Rule shows that this Rule gives a right
to every eligible candidate to apply for any vacancy either for
19 WP - 5348-2003
teaching or a non-teaching post in a private school. In order to
make this right meaningful and effective, a corresponding duty
will have to be read in the Management to give wide publicity to
the fact that there is a vacancy in that school, so that every
candidate who is eligible to apply can come to know of the
existence of the vacancy and apply for the post. Without the
Management making the existence of vacancy known, the right
given by sub-Rule (3) of Rule 9 to every eligible candidate to
apply will be meaningless. It is further to be seen that many
private schools also receive grant-in-aid from the State
Government and therefore salaries of the teaching and non-
teaching staff in the Schools are paid from the public funds, and
therefore considering the provisions of Article 14 of the
Constitution as the salary of the teaching and non teaching staff
is to be paid from the public funds, there would be an obligation
on the Management to advertise the vacancy. So far as the
vacancies which are reserved for backward class are concerned,
there is a specific provision made in sub-rule 8 of Rule 9. Sub-
rule 8 of Rule 9 reads as under:
"Sub-rule (8) of Rule 9- For the purpose of filling up the
vacancies reserved under sub-rule (7) the Management
shall advertise the vacancies in at least one newspaper
having wide circulation in the region and also notify the
vacancies to the Employment Exchange of the District
and to the District Social Welfare Officer (and to the
associations or organisations of persons belonging to
Backward Classes, by whatever names such associations
or organisations are called, and which are recognised by
Government for the purposes of this sub-rule)
requisitioning the names of qualified personnel, if any,
registered with them. If it is not possible to fill in the
reserved post from amongst candidates, if any, who have
applied in response to the advertisement or whose names
are recommended by the Employment Exchange or the
District Social Welfare Officer (or such associations or
organisations as aforesaid) or if no such names are
recommended by the Employment Exchange or the
District Social Welfare Officer (or such associations or
organisation as aforesaid) within a period of one month
the Management may proceed to fill up the reserved post
in accordance with the provisions of sub-rule (9)."
So far as reserved vacancies are concerned, thus, the
Management is not only obliged to issue advertisement in at least
one newspaper, but has also to notify vacancies to various
agencies. In our opinion, therefore, permitting the Management
to fill in the post without advertisement, though there is a clear
provision made in the Act or the Rules, would be contrary to the
20 WP - 5348-2003
scheme of the Act and the Rules. In the provision in Schedule "F",
which we have quoted above, what is provided is preference.
Preference does not mean exclusive right of consideration. It
means right to be preferred, other thing being equal. The
observations made by the Supreme Court in its judgment in the
case of (Sher Singh Vs. Union of India and ors.), A.I.R. 1984
S.C. 200 in relation to the provisions of section 47 of the Motor
Vehicles Act, in our opinion, are relevant.
...
...
...
20. In our opinion, therefore, the questions which have been
referred to have to be answered thus,
1. The Government Resolution dated 15th April, 1991 cannot be
made applicable to the teaching and non-teaching staff in
recognised private schools which are governed by the provisions
of the M.E.P.S. Act & Rules framed thereunder;
2. Schedule "F" to the M.E.P.S. Rules does not provide for
promotion to the post of junior clerk. It merely provides a
preference to be given to the lower grade staffs in making
appointment to the posts of junior clerk and laboratory assistant.
Order accordingly."
36. He submits that the decision posits that Government
resolution / circular will not be able to hold sway over the statutory
provisions of the M.E.P.S. Act and the M.E.P.S. Rules stipulate the
manner in which the vacancies are to be filled in.
37. Learned counsel with reference to above also refers to
decision in the case of State of Orissa and others Vs. Prasanna Kumar Sahoo,
AIR 2007 S.C. 2588. Paragraph no. 14 from the same reads thus :-
" 14. Even a policy decision taken by the State in exercise of its
jurisdiction under Article 162 of the Constitution of India would
21 WP - 5348-2003
be subservient to the recruitment rules framed by the State either
in terms of a legislative act or the proviso appended to Article
309 of the Constitution of India. A purported policy decision
issued by way of an executive instruction cannot override the
statute or statutory rules far less the constitutional provisions."
38. In addition, referring to the case of Chief Settlement
Commissioner, Punjab and others Vs. Om Prakash and others, AIR 1969 S.C. 33, he
submits that statutory provisions must prevail over executive
instructions.
39. The case of Sanjay Lalbahadur Divedi Vs. Shrikrishna Vyayam
Shala, 2010(3) Mh.L.J. 666 is being pressed into service, to impress upon
that unless a candidate qualifies the eligibility criteria, his
candidature for permanent appointment would not be legitimately
considered. He particularly refers to paragraph no. 18 thereunder,
reading thus :-
" 18. From above discussion it follows that the government
resolutions mentioned above and produced on record by
petitioner Santoshkumar and relied upon by all three petitioners
cannot modify the legislative mandate. They cannot claim any
right to post and reinstatement by virtue thereof. Only concession
made in their favour appears to be a separate quota for
admission to that course and facility of in-service training. But
then due to mandate of section 5 of 1977 Act permanent vacancy
with institution is liable to be filled in at the earliest by
appointing qualified/trained person and by putting him on
probation. Such permanent arrangement at the earliest is in the
interest of students and ultimately the educational goals of State
administration. Trained qualified teachers become available
every year and keeping some of them out because some person
appointed by way of concession is getting himself trained will not
only be arbitrary but also loss of talent to Nation and will
amount to failure to put the expertize to its due use. It may also
22 WP - 5348-2003
be discriminatory. Therefore only legislature prescribed year to
year appointment of candidates like petitioners with express
mandate of replacing the untrained teacher by trained one as
soon as possible. Rule 6 of 1981 Rules as applicable here does
not prescribe any time limit and does not protect services of
untrained teacher. He, in his own interest, has to procure that
qualification as early as possible and at his own cost. When
permanent vacancy can be filled in through open competitive
selections in which all eligible i.e. trained graduate aspirants
must participate, untrained teachers getting appointment as a
concession cannot defeat that process by claiming any exemption
from it. Management has to advertise the vacancy with it every
year to find out whether trained teacher becomes available or
not. Untrained teacher appointed on year to year basis has to
apply in response to it and only when the duly qualified teacher
does not surface, he can be selected. His/Their appointment is
year to year and till the post is not filled in permanently through
a duly selected trained teacher, they have no option but to face
such selections. Even after acquiring training qualification, for
their permanent selections and appointment on probation, they
have to compete with others. After getting B.Ed. qualification,
Legislation does not permit them to avoid competition with
trained teachers when post is sought to be filled in permanently.
In service training facility does not confer any precedence in
their favour."
40. He further refers to and relies on a decision in the case
of Priyadarshani Education Trust and others V. Ratis (Rafia) Bano d/o Abdul Rasheed
and others, 2007 (6) Mh.L.J. 667.
41. The clauses from the circular dated 09-07-1987 as
annexed to the petition, which are enumerated as 1 to 4, read
thus :-
" १. इयता ५ वी ते ७ वी किरता अनुजेय असलेलया पदवीधर िशककांची जागा
भरावयाची असेल तर अपदवीधर िशककांचया वेतनशेणीत काम करणाऱया पिशिकत
पदवीधर िशककातील सेवाजेष िशककांची तयाची गुणवता लकात घेऊन िनयुकी
करणयात यावी. याकिरता पिशिकत पदवीधर महणजे पदवीधर व पी. टी. िकंवा
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बी.एड ही पिशकण पदवी िकंवा डी.एड. ही २ वषारची पदिवका, िकंवा नागपूर/मुंबई
िवदापीठांची एस.एस.सी. नंतर दोन वषारनी िमळणारी पदिवका िकंवा
एस.टी.एस./टी.डी./डीपटी. ही एक वषारची पदिवका धारण करणाऱया परंतु िदनांक
१-१०-१९७० पूवी लागलेलया पदवीधर िशककांचा तयांचया रपये २९०-५४२
(पिशिकत अपदवीधर) वेतनशेणीतील जेषतेनुसार िवचार करणयात यावा. तसेच
जया िदवसापासून पदवीधर िशककांची जागा िरक होत असेल तया िदवशी सदर
वेतनशेणी काम करणयाऱया पदवीधर िशककांचाच िवचार करावा, तयािदवशी पद
भरले नाही तर तया तारखेनंतर पदवीधर झाले परंतु र. २९०-५४० या वेतनशेणीत
आलेला िशकक अशा पदाकिरता हकक सांगू शकणार नाही.
२. इयता ८ वी ते ९ वी किरता या पदवीधर िशककांची िनयुकी करावयाची असेल
तर र. २९० - ५४० या वेतनशेणीत काम करणाऱया पदवीधर व बी. टी. / बी.
एड. ही पिशकण पदवी धारण करणाऱया िशककांचा तयांचया जेषतेनुसार गुणवता
लकात घेऊन िवचार करणयात यावा. तसेच इयता ८ वी ते १० वी किरता
असलेली पिशिकत पदवीधर िशकणाची जागा भरताना जर िवषयाची गरज लकात
घेऊन जेषतम िशककांची जेषता डावलून किनष िशककाची िनयुकी करावयाची
असेल तयाकिरता संसथेने िशकणािधकाऱयांची पूवरपरवानगी घयावी.
३. इयता ५ वी ते ७ वी किरता पिशिकत पदवीधर िशककांचया जागांवर जर
पिशिकत पदवीधर िशकक २९० - ५४० या वेतनशेणीत काम करीत असेल तर
पदवीधर िशककांची िरक जागा खुलया बाजारातून करणयात येऊ नये . जर इयता ८
वी ते १० वी किरता िविशष िवषय िशककांची गरज असेल व असा िवषय िशकक
उपलबध नसेल तरच िशकणािधकाऱयांचया पूवर परवानगीने खुलया बाजारातून तया
िविशष िवषय िशकणाची भरती करणयात यावी.
४. पदवीधर िशककांचया जागा भरताना जर संसथेचया एकापेका जासत शाळा
असतील तर अशी सवर शाळांतील अपदवीधार वेतनशेणीत काम करणाऱया
पदवीधर िशककांचा िवचार करणयात यावा, जर जेषतम िशकक पदवीधर िशककांची
जागा सवीकारणयास तयार नसेल तर तसे तयांचेकडू न लेखी नकारपत घेणयात यावे."
42. The advertisement, it appears, had been issued in
August, 2002 inviting applications for appointments to the posts of
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Shikshan Sevaks by respondents no. 5 and 6 in Secondary school on
the two posts falling vacant in the subjects Physics and Chemistry
and one in Hindi, respectively. It further appears, petitioners
pursuant to the same, had participated in the selection process.
Petitioners were not appointed and other persons were selected and
appointed as Shikshan Sevaks in the respective subjects.
43. It appears that, in December, 2002, representations
were made to Education Officer (Secondary), Zilla Parishad,
Ahmednagar seeking B.Ed. scale referring to various dates, as given
in the annexure, of acquisition of Graduate training qualification. It
has been contended in the representations that petitioners had
requested for granting them B.Ed. scale from time to time upon
availability of posts to be occupied by employees acquiring B.Ed.
training qualification, however, whenever posts had been available,
those have been filled up by making appointments of outside people
ignoring the Government order dated 19-04-1981. It is further
contended that on retirement of some teachers, posts have fallen
vacant and were available for employees holding B.Ed. qualification.
But the management had advertised the posts, which is a serious
matter and, as such, purported to demand justice. It also appears
that petitioners' association had also caused correspondence.
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44. A few petitioners had been before this Court by filing writ
petitions no. 1585 of 2003, 1527 of 2003, 1246 of 2000 and 1249 of
2000 and the Education Officer (Secondary) Zilla Parishad had been
directed to consider the claim of teachers and pass appropriate
orders with direction to dispose of their representations.
45. Petitioners thereafter had filed representation dated
13-05-2003 that they should be given benefit of clauses under the
resolution dated 09-07-1987 and purported to refer to that a
similarly situated employee had been given benefit of graduate pay
scale since 1987 and such benefit being not offered to petitioners,
the same has been causing discrimination which is erroneous and is
in violation of Article 14 of the Constitution of India. The Education
Officer (Secondary) under communication dated 15-07-2003 had
communicated to petitioners that there are no specific directions for
granting trained graduate pay scale to persons acquiring
qualifications working in the D.Ed. pay scale and that appointments
and promotions on the post are domain of the institution.
46. While the facts are considered, there does not appear
any dispute about the position that appointments as were sought
under the advertisement pursuant to which petitioners appear to
have applied for and the posts falling vacant during pendency of the
Writ Petition were the posts for teaching eighth standard to tenth
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standard. If that be so, the subjectwise qualification may be
necessary to be possessed. It is not a case, in selection process
pursuant to the advertisement, the selection is not on the basis of
merits and is not following the due procedure as prescribed under
the M.E.P.S. Act and Rules.
47. All the appointments which have been made during the course
of the Writ Petition have been appointments on the post falling
vacant during the pendency of Writ Petition.
48. Albeit counsel for petitioners contended that it is only
ostensibly the appointments are shown to have been made for
eighth to tenth standards, yet, the said teachers are working also on
the classes of middle school from fifth to seventh standards. This
submission, however, is not being supported by any material worth
consideration whereas learned Advocate appearing for respondents
have emphatically denied such claim.
49. In the present matter, so far as advertisement of 2002 is
concerned, petitioners appear to have participated without protest
and after having failed, it may not be legitimate for them to turn
around and question the appointments made pursuant to said
advertisement. It may be worthwhile to refer to paragraph no. 14
from Ranjan Kumar and others v. State of Bihar and others , (2014) 16 SCC 187 ,
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reading thus :-
" 14. The next submission which has been presented before us is
that when the respondents had appeared in the interview knowing
fully well the process, they could not have resiled later on or
taken a somersault saying that the procedure as adopted by the
department was vitiated. In this connection, it is apt to refer to
the principle stated in Om Prakash Shukla v. Akhilesh Kumar
Shukla. In the said case a three-Judge Bench, taking note of the
fact that the petitioner in the writ petition had appeared for the
examination without protest and filed the petition only after he
realised that he would not succeed in the examination, held that
the writ petitioner should not have been granted any relief by the
High Court."
50. The position emerges that the posts for which petitioners
had participated in the selection process under advertisement, were
the posts for specific subjects of Physics and Chemistry and Hindi for
secondary school i.e. eighth to tenth standards. This Court under its
order, had put a condition that management while making
appointments, permission be taken from this Court. Under various
orders passed from time to time in the Civil Applications, permission
had been given to the management to make appointments subject
to decision in the writ petition.
51. So far as the appointments made pursuant to the
advertisement of 2002 and subsequent appointments made under
permission from this Court are appointments to secondary school in
certain subjects. As far as post of English subject is concerned, an
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explanation has come from the management, as to why the
concerned petitioners could not be considered. In other subjects,
the appointments have been subjectwise in which none of the
petitioners is qualified. As such, to a large extent, not only the
procedure under the rules has been followed but also largely
according to conditions as would be appearing in 1987 Circular relied
on, appointments in specific subjects in the secondary schools have
been made.
52. The petitioners have not been able to point out a single
case wherein for the classes from first to seventh standards, where
subjectwise appointments would not be insisted upon, any person
has been appointed disregarding the claim of petitioners. The
management has referred to various aspects about the working
hours, number of students, number of classes etc. Petitioners
although have submitted that the persons appointed in secondary
school have been performing duties in VII or lower standards, no
material has been effectively placed before this Court.
53. As such, in the present writ petition, having regard to
emerging position, the request made under the prayer clauses of the
writ petitions, seeking appointments along with deemed date from
the date of acquiring eligibility to hold the post of trained graduate
teachers along with consequential benefits is difficult to be acceded
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to and granted.
54. In the circumstances, it would not be necessary to go
into the other aspects as argued in the present matter. The Writ
Petition, as such, is dismissed. Rule stands discharged.
55. Consequently, Civil Application no. 16007 of 2016 filed in
this Writ Petition does not survive and stands disposed of.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
arp/
