Bombay High Court
Maharashtra Apang Ekatma ... vs State Of Mah. Thr. Its Secretary, ... on 28 July, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6465/2011
PETITIONERS: 1. Maharashtra Apang Ekatma Shikshan
Association, Nagpur District, Nagpur,
An Association registered under the
Maharashtra Cooperative Societies Act,
1960 bearing Registration No.228/2009
through its Secretary Shri Ashok s/o
Hiraman Wankhade, having its office at
21, Patel Nagar, Near Kamgar Colony,
Subhash Road, Nagpur, Tahsil & District
Nagpur (Maharashtra State).
2. Mrs. Gracy John Anbhore,
Aged about 30 years, Occupation - Service,
R/o Plot No.38, Jai Hind Nagar, Koradi Road,
Nagpur, Tahsil & District Nagpur
(Maharashtra State).
3. Ku. Suman D/o Mahendra Singh Thakur,
Aged about 31 years, Occupation - Service,
R/o Plot No.11, Prashant Layout, Behind
Pandey Nursery, Katol Road, Nagpur, Tahsil
& District Nagpur (Maharashtra State).
4. Ku. Sneha D/o Prakash Singh Parmar,
Aged about 24 years, Occupation - Service,
R/o Jorge Colony, F/22-23, Khaperkheda,
Tahsil & District Nagpur (Maharashtra State).
5. Shri Ashok s/o Hiramanji Wankhade,
Aged about 42 years, Occupation - Service,
R/o 21, Palker Layout, Near Ashtavinayak
Empire, Hingna Road, Nagpur, Tahsil &
District, Nagpur (Maharashtra State).
6. Ku. Pranali D/o Vijay Nagulwar
Aged about 32 years, Occupation - Service,
R/o Near Indian Gymkhana, Dhantoli, Nagpur,
Tahsil & District Nagpur (Maharashtra State).
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7. Ku. Vaishali D/o Rameshrao Kolhe,
Aged about 28 years, Occupation -
Service, R/o C/o Arun Sangitrao, N/18,
New Sneha Nagar, Wardha Road, Nagpur,
Tahsil & District Nagpur (Maharashtra State).
8. Shri Sanjay s/o Vasudeorao Watane,
Aged about 41 years, Occupation - Service,
R/o 20, Palker Layout, Wanadongri, Hingna
Road, Nagpur, Tahsil & District Nagpur
(Maharashtra State).
9. Shri Sachin s/o Bhimrao Sonone,
Aged about 22 years, Occupation - Service,
R/o Matoshri Nagar, Balaji Fabrication,
Wanadongri, Hingna Road, Nagpur,
Tahsil & District Nagpur (Maharashtra State).
10. Ku. Sushma D/o Dattuji Nagapure,
Aged about 37 years, Occupation - Service,
R/o 19, Jaiprakash Nagar, Narkesari
Layout, Khamla, Nagpur, Tahsil & District
Nagpur (Maharashtra State).
11. Shri Narendra s/o Digamber Wankhade,
Aged about 25 years, Occupation - Service,
R/o At Yeoti, Post New Wathoda,
Taluka Morshi, District - Amravati (Maharashtra
State).
12. Ku. Harsha D/o Bajirao Tumsare,
Aged about 42 years, Occupation - Service,
R/o Flat No.204, Rahul Complex, Wing No.1,
S.T. Stand Square, Ganeshpeth Road,
Nagpur, Tahsil & District Nagpur (Maharashtra
State).
13. Shri Prakashrao s/o Namdeorao Mate,
Aged about 38 years, Occupation -
Service, R/o Z.P. Up. Primary School,
Belkhed, Post Ladegaon, Tq. Karanja Lad
Nagpur, District Washim (Maharashtra State).
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14. Shri Ravi s/o Sitaram Kande,
Aged about 40 years, Occupation - Service,
R/o 20, Z.P. Primary School, Dalpatpur,
Post Antora, Tq. Ashthi, District - Wardha
(Maharashtra State).
15. Ku. Pooja D/o Praful Dharamthok,
Aged about 39 years, Occupation - Service,
R/o Plot No.65, Sharda Nagar, Hudkeshwar
Road, Nagpur, Tahsil & District Nagpur
(Maharashtra State).
16. Mrs. Aarti w/o Subhash Dharamthok,
Aged about 35 years, Occupation - Service,
R/o Plot No.65, Sharda Nagar, Hudkeshwar
Road, Nagpur, Tahsil & District Nagpur
(Maharashtra State).
17. Mrs. Sangita w/o Milind Kapse,
Aged about 33 years, Occupation - Service,
R/o 2, Jais House, Near S.D. Hospital,
Ganesh Nagar, Nandanvan, Nagpur, Tahsil
& District Nagpur (Maharashtra State).
18. Shri Shrirang s/o Arun Pofali,
Aged about 38 years, Occupation - Service,
R/o 97, Shree Apartment, Pandey Layout,
Khamla, Nagpur, Tahsil & District Nagpur
(Maharashtra State).
19. Shri Ganesh s/o Shankarrao Ladekar,
Aged about 43 years, Occupation - Service,
R/o Gandhinagar, Ward No.21, Wardha,
District Wardha (Maharashtra State).
...VERSUS...
RESPONDENTS: 1. State of Maharashtra through its
Secretary, School Education & Sports
Department, Mantralaya, Mumbai - 400 032.
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2. Rehabilitation Council of India,
Ministry of Social Justice & Empowerment,
B-22, Qutub Institutional Area, New Delhi.
3. National Council For Teachers Education,
New Delhi.
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Shri H.D. Dangre, Counsel for the petitioners
Shri K.L. Dharmadhikari, AGP for the respondent no.1
Shri P.S. Chavan, Counsel for the respondent no.3
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 28.07.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
By this petition, the petitioners challenge the condition in
the Government Resolution dated 15/9/2010 asking the petitioners to
secure the D.Ed. qualification within a period of three years from the date
of their absorption as primary teachers in various schools and institutions
or else their services would be terminated. The petitioners seek a
declaration that the petitioner nos.2 to 19 are qualified primary teachers
and the diploma possessed by them in special education is equivalent to
the diploma in education (General).
2. The petitioner no.1 is an association of teachers in the
schools meant for the physically challenged children and the petitioner
nos.2 to 19 are the teachers that are appointed in regular primary schools
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in pursuance of the Government Resolution dated 15/9/2010. Earlier the
petitioner nos.2 to 19 were appointed as special teachers in the schools
for physically challenged children under the Integrated Education Scheme
known as "Apang Ekatma Shikshan Yojana". After the scheme was
discontinued by the Central and the State Government, the Government
took a decision of absorbing the teachers like the petitioner nos.2 to 19 in
several schools run by the local bodies and private aided institutions. The
petitioner nos.2 to 19 possessed S.S.C. certificate and a diploma in special
education that was required for teaching the disabled children. Since the
State Government had absorbed the petitioner nos.2 to 19 and several
other special teachers that were appointed as special teachers in the
Handicapped Integrated Education Scheme in regular schools meant for
normal children, the State Government, by the Resolution dated
15/9/2010 while absorbing the said teachers from the said scheme in
regular primary schools incorporated a condition in the Government
Resolution that the said teachers should secure the training qualification,
i.e., D.Ed. or B.Ed. qualification in general education. Being aggrieved by
the imposition of the condition of securing the D.Ed. (General)
qualification within three years, the petitioners have filed the instant
petition seeking a declaration that the diploma in special education is
equivalent to D.Ed. (General) and that the action on the part of the State
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Government of imposing the condition in the Government Resolution
dated 15/9/2010 that the petitioners should secure the D.Ed. (General)
qualification within three years is bad in law. In the aforesaid set of facts,
the petitioners have approached this Court for seeking the aforesaid relief.
3. Shri Dangre, the learned Counsel for the petitioners
submitted that the diploma in special education as possessed by the
petitioners is equivalent to D.Ed. (General) qualification. It is submitted
that the Rehabilitation Council of India, which is a recognized institution
for ensuring the progress in the field of disability has clearly held that
B.Ed. general education and B.Ed. special education qualifications are
equivalent to each other. The learned Counsel relied on the Circular of the
Rehabilitation Council of India dated 31/10/2005 in this regard. It is
submitted that the National Council of Teachers Education (N.C.T.E.) and
the Rehabilitation Council of India had entered into a memorandum of
understanding on 19/1/2005 and it was decided by the said authorities
that by including the children with special needs in regular schools, both
children with special needs and regular children will be benefited. It is
submitted that in Writ Petition (C) No.6771/2008 that came up before
the Delhi High Court, the Rehabilitation Council of India had filed an
affidavit stating therein that B.Ed. special education is a degree
programme for one year and it is equivalent to B.Ed. (General). It is
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stated that it was further stated in the affidavit filed by the Rehabilitation
Council of India that the candidates who secured B.Ed. special education
are much more trained in comparison to B.Ed. (General) and D.Ed.
(General) as apart from the training of teaching they get the training as to
how to teach the physically challenged children. It is stated that on a
reading of the affidavit filed by the Rehabilitation Council of India before
the Delhi High Court it could be said that the diploma in special
education, as possessed by the petitioners is at least equivalent to the
diploma in education (General). It is stated that the notification of the
N.C.T.E. dated 23/8/2010 prescribing minimum qualifications for
appointment of primary teachers also clearly provides that a candidate
possessing senior secondary (or its equivalent) with at least 50% marks
and two years diploma in education (Special education) would be entitled
to be appointed as an Assistant Teacher. It is submitted that it is clear
from the aforesaid that the diploma in special education is equivalent to
the diploma in D.Ed. (General). It is submitted that it was very wrongful
on the part of the State Government to ask the petitioners to secure the
D.Ed. (General) qualification within three years from the date of their
absorption in the primary schools. It is submitted that since the petitioners
possess the diploma in special education, they should be granted the pay
scale of a regular Assistant Teacher from the date of their absorption and
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not from the date on which they would secure the D.Ed. (General)
qualification. It is stated that if this Court is not inclined to grant a
declaration in favour of the petitioners, as claimed, this Court may extend
the time to secure D.Ed. (General) qualification by three more years for
those petitioners and the other special teachers that have not secured the
qualification in view of the interim order of this Court, restraining the
respondent no.1 from taking any coercive action against the petitioners, if
they do not secure the D.Ed. (General) qualification within the time-
frame.
4. Shri Dharmadhikari, the learned Assistant Government
Pleader for the State of Maharashtra denied the claim of the petitioners. It
is stated that after the "Apang Ekatma Shikshan Yojana" was closed down
in the year 2009-10, the petitioners did not have any right of seeking their
absorption in the schools run by the Government, local bodies and the
private aided schools. It is stated that by taking a sympathetic view in the
cases of the petitioners, who were appointed as special teachers under the
scheme, the State Government issued a Resolution on 15/9/2010
permitting the absorption of the special teachers in the regular schools
run by the State Government, local bodies and the private aided schools.
It is stated that the petitioners were not employed for teaching the
disabled children but were absorbed in primary schools that were meant
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for normal children. It is stated that the qualifications required to be
possessed by the primary teachers appointed in regular primary schools
would not be the qualifications prescribed by the N.C.T.E. or the
Rehabilitation Council of India but the qualifications of primary teachers
working in regular primary schools would be governed by the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 and the Rules of 1981 framed thereunder. It is
stated that Schedule - B appended to the Act prescribes the qualifications
of primary teachers that could be appointed in the primary schools. It is
stated that Schedule - B clearly prescribes that the appointment to the
posts of primary school teachers and other special teachers - drawing
teachers shall be made by nomination from amongst the candidates who
have passed the S.S.C. examination or matriculation examination and
who possess a diploma in education of two years duration. It is stated that
on a reading of Schedule - B it is clear that a teacher appointed as an
Assistant Teacher in a primary school is required to possess a S.S.C.
certificate and D.Ed. (General) qualification. It is stated that since the
petitioners were sought to be absorbed in the schools meant for normal
children, i.e., regular primary schools it was necessary for the petitioners
to possess the D.Ed. (General) qualification. It is stated that D.Ed.
(General) is an essential qualification, that is, required to be possessed by
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an Assistant Teacher working in a primary school as per Schedule - B. It is
submitted that instead of abiding by the condition in the Government
Resolution dated 15/9/2010, after the Government had taken a
humanitarian view in the matter, the petitioners have unnecessarily
challenged the condition in the Government Resolution. It is submitted
that the petitioners would not be entitled to claim salary of regular
primary teachers till they secure the D.Ed. qualification. It is submitted
that since the services of the petitioners would be governed by the Act of
1977 and Rules of 1981, the opinion of the Rehabilitation Council of India
or the N.C.T.E. would not be of any assistance to the petitioners for
seeking the relief claimed. It is stated that this Court may not favourably
consider the prayer made by the petitioners for granting the scale of a
regular primary teacher to the petitioners from the date of their
absorption. The learned Assistant Government Pleader sought for the
dismissal of the writ petition.
5. Shri Chavan, the learned Counsel for the respondent no.3
submitted that the respondent no.3 is not involved in the controversy as
the claim of the petitioners is mainly against the respondent no.1.
6. On hearing the learned Counsel for the parties, it appears
that a declaration that the diploma in special education is equivalent to
the diploma in general education cannot be granted in the circumstances
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of the case. Firstly, it is not in the domain of this Court to grant
equivalence to the educational qualifications. Only the Equivalence
Committee or the authority that is empowered to decide the question of
equivalence would be entitled to grant equivalence. In this background, it
would be necessary to consider whether the diploma in special education
is considered to be equivalent to the diploma in education (General).
There is nothing on record to show that any authority competent to grant
such equivalence has held so. It is necessary to note that the petitioners
were not appointed as Assistant Teachers in the schools meant for normal
children in the year 2010 by following the due process of selection. The
petitioners were working as special teachers under a scheme that was
framed by the Central Government and implemented by the State
Government. After the discontinuance of the scheme sometime in the year
2009-10 the State Government, after taking a lenient view in the matter
of the petitioners decided to absorb the petitioners in the primary schools
meant for normal children. Hence, by the Government Resolution dated
15/9/2010 the petitioners were sought to be absorbed in the schools run
by the local bodies and the private aided schools. Since the conditions of
service of the teachers in a primary schools meant for normal children
would be governed by the provisions of the the Maharashtra Employees of
Private Schools (Conditions of Service) Regulation Act, 1977 and the
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Rules framed thereunder, it was necessary for an Assistant Teacher
appointed in a regular primary school to possess the D.Ed.(General)
qualification. Keeping that aspect in view, the State Government while
deciding to absorb the petitioners in the schools meant for normal
children decided to grant reasonable time of three years to the petitioners
to secure the D.Ed. (Regular) qualification either by regular training or by
the correspondence course. It was not difficult for the petitioners to have
secured the D.Ed. (General) qualification by correspondence course
within three years. Instead of securing the qualification, that is the
necessary qualification required to be possessed by the Assistant Teachers
working in regular primary schools, the petitioners have rushed to this
Court challenging the condition in the Government Resolution dated
15/9/2010. It is normally noticed by the Courts that when certain persons
or parties that are not entitled to some relief as of a right are granted
some relief in the absence of any right in them to secure the same, the
said parties or persons have a tendency of asking for more. The
petitioners did not have a right to seek their absorption in regular primary
schools after the scheme was closed but without following the due process
of selection, the State Government had absorbed them in primary schools
meant for normal children only with a view to continue them in service.
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7. While holding that the petitioners would be required to
possess the requisite qualification of D.Ed. (General) in view of the Act
and the Rules of 1977 and 1981 respectively we are not inclined to accept
the submission made on behalf of the petitioners that since the
Rehabilitation Council of India has observed in the Circular dated
31/10/2005 that B.Ed. special education degree is equivalent to B.Ed.
general education degree this Court may hold so and grant the relief in
favour of the petitioners. There are more than one reasons for rejecting
this submission. The Rehabilitation Council of India is a statutory body for
standardizing and recognizing the curriculum in the field of Disability,
Special Education and Rehabilitation. The Rehabilitation Council of India
as per the Act of 1992 is established only with a view to fulfil the
objectives and responsibilities for recognizing institutions and for
conducting the training courses in the field of disability. The
Rehabilitation Council of India has nothing to do with the institutions that
are meant for normal children. The Circular of the Rehabilitation Council
of India dated 31/10/2005 and the affidavit tendered by the
Rehabilitation Council of India before the Delhi High Court in Writ
Petition (C) No.6771/2008 therefore cannot be helpful to the petitioners
in seeking the relief claimed. It is worthwhile to note that in the matter
before the Delhi High Court, the Delhi High Court was not considering the
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issue pertaining to the education of normal children and was considering
the issue relating to the improvement of infrastructure and upgradation of
human resources and management for facilitating the education of
disabled children. This judgment will therefore not be of any assistance to
the case of the petitioners. Also, we find that the Rehabilitation Council of
India has not held that the diploma in special education is equivalent to
D.Ed. (General) qualification. So also, the notification of the N.C.T.E.
dated 23/8/2010 cannot come to the rescue of the petitioners in seeking a
declaration that the diploma in special education would be the requisite
qualification for appointment to the post of primary teachers in schools
meant for normal children as their qualifications are prescribed in
Schedule - B appended to the Act of 1977. In view of the aforesaid, it
would be necessary to hold that the petitioners would not be entitled to a
declaration that the diploma in special education is equivalent to the
diploma in education (D.Ed. General).
8. It would now be necessary to consider whether the time to
secure the diploma in education (General) could be extended in the case
of the petitioners. The learned Counsel for the petitioners has stated that
some of the petitioners and certain other special teachers that are
absorbed in pursuance of the Government Resolution dated 15/9/2010
have acquired the D.Ed. (General) qualification in view of the condition in
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the Government Resolution dated 15/9/2010, though the petition was
pending. We find that by the interim orders passed in the petition, the
State Government was restrained from taking any coercive action against
the petitioners that had not secured the diploma in education (General)
within a period of three years as provided by the Government Resolution
dated 15/9/2010. It appears that in view of the operation of the interim
orders during the pendency of the writ petition, some of the petitioners
did not make any efforts to secure the diploma in education (D.Ed.
General). In the circumstances of the case, specially when the State has
taken a humanitarian view in the cases of the petitioners and has
absorbed them in pursuance of the Government Resolution dated
15/9/2010, it would be necessary to extend the time to secure the D.Ed.
(General) qualification by three years from the date of this judgment.
Since the petitioners possess the diploma in special education, in the
circumstances of the case and in view of the law laid down by this Court
in the judgment dated 23/12/2015 in Writ Petition No.6355/2014 and
the judgment dated 20/7/2017 in Writ Petition No.4595/2015, we hold
that the petitioners would be entitled to the scale of a trained Assistant
Teacher from the date of their absorption if they have secured the D.Ed.
(General) qualification in three years from their absorption and if they
have not secured within three years, they would be entitled to the arrears
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of salary of a trained Assistant Teacher for a maximum period of three
years preceding the date of acquisition of the D.Ed. qualification. The
period is restricted, so that the petitioners should not take advantage of
their inaction to prosecute the D.Ed. course during the pendency of the
petition.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
