Bombay High Court
Krushnashankar Gyanobaji Sawant vs The State Of Mah. & Ors on 13 June, 2017
Bench: T.V. Nalawade
1 WP 7155 of 2004
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 7155 of 2004
* Krushnashankar s/o Gyanobaji Sawant,
Age 32 years,
Occupation : Service,
Assistant Teacher,
Kalvash Sheshraoji Chandrao Raut
Adivasi Ashram School, Mahadapur,
Post Savna, Taluka Hadgaon,
District Nanded. .. Petitioner.
Versus
1) The State of Maharashtra
Through its Secretary,
School Education Department,
Mantralaya, Mumbai 400 032.
2) The Secretary,
Tribal Development Department,
Mantralaya, Mumbai.
3) The Commissioner,
Tribal Development
Adivasi Vikas Bhavan,
Old Agra Road, Nasik,
District Nasik.
4) The Project Officer,
Integrated Tribal Development
Project, Kinwat, Taluka Kinwat,
District Nanded.
5) The Magas Vargiya Shetkari
Shikshan Prasarak Mandal,
Dolari, Taluka Himayatnagar,
District Nanded.
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2 WP 7155 of 2004
6) The Head Master,
Kalvash Sheshraoji Chandrao
Raut Adivasi Ashram Shala,
Mahadapur, Post Savna,
Taluka Hadgaon,
District Nanded. .. Respondents.
----
Shri. S.R. Barlinge, Advocate, for petitioner.
Shri. A.S. Shinde, Assistant Government Pleader, for
respondent Nos.1 to 4.
----
Coram: T.V. NALAWADE &
SANGITRAO S PATIL, JJ.
Date: 13 June 2017.
ORAL JUDGMENT : (Per T.V. Nalawade, J.)
1) The proceeding is filed for the relief of
quashing and setting aside the Government Resolutions of
the Maharashtra Government dated 10-3-2003 and 20-9-
2003. The Government Resolutions are issued by the
Tribal Development Department of the State Government.
The petitioner is interested in protecting his service
conditions as promised to him on the date of his
appointment as a trained graduate teacher in Ashram
School of respondent Nos.5 and 6 for 1st to 7th
Standard, primary school. Due to the Government
3 WP 7155 of 2004
Resolutions under challenge the Government authorities,
respondent Nos.1 to 4 have refused approval to the
appointment of the petitioner as trained graduate teacher.
It is the contention of these respondents that at the most
approval can be given to the appointment as untrained
teacher in view of the requisite qualification viz. D.Ed. for
trained teacher. Both the sides are heard.
2) Hundreds of writ petition were filed by the
teachers of private schools and even of the local bodies as
due to the aforesaid Government Resolutions, the
concerned authorities had informed in similar way to the
B.A./B.Sc. teachers who were holding B.Ed. degree. In
Maharashtra Class 1st to Class 7th Standards of school
form part of primary school and Class 8th to 10th
Standards are treated as part of secondary school.
However, Classes 5th to 7th Standard can be attached to
secondary school also and so Class 5th to 7th Standards
can be part of primary school as level II of primary school
or part of secondary school. For Class 5th to 7th
Standards there were graduate teachers holding B.Ed.
qualification and but if these classes were part of primary
4 WP 7155 of 2004
school, teachers of such schools were not getting salary of
trained graduate teacher even when they were having
qualification like B.A./B.Sc. and B.Ed. Such scale was
available to 25% of the teachers having such qualification
but employed in secondary school. To remove this
disparity some Government Resolutions were issued by
the State Government which include Government
Resolutions dated 14-11-1979 and 26-10-1982. Due to
such Resolutions first time some posts of teachers from
primary school were upgraded and 25% posts were
created as the posts of trained graduate teachers in
primary school which had 5th to 7th Standard Classes.
Many writ petitions were already decided by different
Courts at Principal Seat and at the Benches and
conflicting views were taken on the requirement of
educational qualification for getting appointment in
primary school having 1st to 7th Standard Classes.
Ultimately the matter was referred to larger Bench and in
the case reported as 2000(3) Bom.C.R. 803 (Full Bench)
of this Court (Smt. Jayashree Chavan v. State of
Maharashtra and Others) the point referred viz. "whether
the qualification B. Ed. is the requisite qualification for
5 WP 7155 of 2004
teaching the students in primary school" was answered in
negative and it was held that D.Ed. is the requisite
minimum qualification for teaching students in a primary
school and B.Ed. qualification cannot be treated as
equivalent thereto. This decision was given on 5-5-2000.
In view of this decision of the Full Bench, the State
Government issued two Government Resolutions under
challenge viz. Government Resolutions dated 10-3-2003
and 20-9-2003 (by Tribal Development Department of the
Government) and informed that D.Ed. was the requisite
qualification for getting appointment as a trained teacher
in primary school. There are different scales for untrained
teacher, trained teacher and trained graduate teacher.
3) Respondent No.5 and 6, Ashram School,
employer of the petitioner, private institution, had
published advertisement in the year 2000 for the post of
trained graduate teacher for primary school. This school is
having 5th to 7th standard Classes. In response to the
advertisement, the petitioner had applied for the said post
and the petitioner came to be appointed on 11-8-2000 on
this post. This post was having scale of Rs.5500 - 9000.
6 WP 7155 of 2004
Approval by the competent authority like respondent
No.4, Project Officer was accorded to the appointment
though of temporary nature and for limited period.
Similarly, subsequently approval was given even by the
Commissioner, Tribal Development, for such appointment
though on temporary basis and for limited period. It is the
contention of the petitioner that necessary procedure
prescribed for such recruitment was followed. After
completion of the probation period satisfactorily, the
petitioner came to be confirmed on this post by
respondent Nos.5 and 6 on 1-5-2003. Proposal was then
sent by the employer to the authority, respondent No.1 to
4, for approval of this confirmation. As till then there were
Government Resolutions of State Government dated 10-3-
2003 and dated 20-9-2003, the authority refused to give
approval to the appointment of the petitioner on the post
of trained graduate teacher and even as trained teacher.
The previous approvals for the appointment were given
for the years 2001, 2002 and part of the year 2003. Thus,
approval is refused on the ground that the petitioner was
not having requisite qualification like D.Ed. as mentioned
in the Government Resolutions under challenge.
7 WP 7155 of 2004
4) It is the contention of the petitioner that the
two Government Resolutions under challenge are issued
by the State Government due to misreading of the
judgment delivered in Jayashree Chavan's case (cited
supra). It is also the contention that the point involved in
the said petition was different which is already quoted and
there was no need to issue the Government Resolutions to
the effect that the teacher having B.Ed. cannot be
recognized as trained teacher. It is the contention of the
petitioner that his appointment as trained graduate
teacher was already approved and so the subsequent
Government Resolutions could not have disturbed his
service conditions.
5) It is not disputed that the rules which were
used for Ashram Schools at the time of the appointment of
the petitioner were given in Maharashtra Employees of
Private Schools (Conditions of Service) Rules 1981 and
there was no separate Code as such for Ashram Schools.
Such Code came in force subsequently. There were
previous Government Resolutions of State Government
due to which some posts of teachers from primary schools
8 WP 7155 of 2004
were upgraded to enable the teachers having B.A./B.Sc.
and B.Ed. to get scale of trained graduate teacher. Such
Government Resolutions like Government Resolutions
dated 14-11-1979 and 26-10-1982 and the aforesaid
peculiar circumstances of the present matter cannot be
ignored while deciding the present matter.
6) The learned Assistant Government Pleader
placed reliance mainly on the decision of the Full Bench
delivered in Jayashree Chavan's case (cited supra) and he
submitted that as D.Ed. is the requisite qualification for
trained teacher in primary school and as D.Ed. is not
equivalent to B.Ed., the petitioner cannot be treated as a
trained graduate teacher. To answer this proposition, the
learned counsel for the petitioner has placed reliance on
a case reported as 2007 (2) ALL MR 933 (Supreme Court)
(State of Maharashtra & Others v. Tukaram) .
7) In the case of Tukaram (cited supra) the Apex
Court has considered the old requirements of the
Government Resolution dated 14-11-1979 and
Government Resolution dated 26-10-1982 and also
9 WP 7155 of 2004
Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 relating to the dispute involved. The
Apex Court has considered the ratio of the case of
Jayashree Chavan (cited supra) and also the decision
given by Division Bench of this Court in the case reported
as 2003(2) ALL MR 951 (Kondiba Vs. State of
Maharashtra). In the case of Kondiba (cited supra) the
Division Bench of this Court had considered the decision
of the Full Bench delivered in Jayashree Chavan's case
(cited supra) and had held that the case of Kondiba can be
distinguished from the case of Jayashree and the point
involved in the Jayashree Chavan's case. It is true that in
Kondiba's case (cited supra) the teacher involved was of
local body, Municipal Corporation and separate rules of
procedure and eligibility conditions can be there for such
schools. The Division Bench in Kondiba's case considered
the provisions of the Maharashtra Employees of Private
Schools (Conditions of Service) Rules, 1981 and the
aforesaid Government Resolution of the year 1979. The
Division Bench observed that even if it is presumed that
Maharashtra Employees of Private Schools (Conditions of
Service) Rules, 1981 can be applied against Kondiba, in
10 WP 7155 of 2004
that case also, a teacher having qualification like B.A.
B.Ed. appointed as the trained graduate teacher can say
that he was having requisite educational qualification. In
that case the teacher was appointed in the year 1984. In
Tukaram's case (cited supra) the Apex Court was
considering the case of teachers appointed in or about the
year 1988 in private primary schools. These teachers were
having qualification as B.Ed. and the Apex Court held that
they can be treated as trained teachers in view of previous
Government Resolutions of the State Government. The
Apex Court considered the situation created due to
Government Resolutions of 14-11-1979 and 26-10-1982
and observed that scope was created to get appointment
as trained graduate teacher even in private primary
schools due to the Government Resolutions if there were
5th to 7th Classes attached to the primary school. Apex
Court upheld the decision of High Court given in favour of
such teachers by referring Kondiba's case cited supra.
8) In Writ Petition No.7731 of 2005 (Pundlik v.
The State of Maharashtra) decided by another Division
Bench of this Court on 3-10-2007 when a teacher of
11 WP 7155 of 2004
Ashram School was involved, the Division Bench of this
Court considered the aforesaid Full Bench case of
Jayashree Chavan and also the case of Tukaram decided
by the Hon'ble Apex Court (cited supra) and held that if
the first appointment was as trained graduate teacher of
person having B.A.B.Ed qualification he needs to be
approved as trained graduate teacher of primary school
having 1st to 7th Standard classes.
9) The present matter is contested by respondent
Nos.1 to 4 on the basis of decision of the Full Bench of
this Court in Jayashree Chavan's case (cited supra), the
Government Resolutions under challenge and rules made
in Maharashtra Employees of Private Schools (Conditions
of Service) Rules, 1981. The learned Assistant
Government Pleader, however, ultimately submitted that
there is now separate Code for Ashram Schools and in
view of those rules also D.Ed. is the requisite qualification
for getting appointment in private Ashram School and as
D.Ed. is the necessary qualification, the petitioner's
appointment cannot be approved as a trained teacher.
These contentions are already dealt with. No other ground
12 WP 7155 of 2004
is raised by these respondents.
10) In view of the peculiar facts of this case which
are already quoted and the ratios of the cases of Kondiba,
Tukaram and Pundlik (cited supra) this Court holds that
the petitioner is entitled to get approval to his
appointment on the post of trained graduate teacher.
Though the petitioner is entitled to such relief, there is
no need to set aside the Government Resolutions under
challenge. On facts of the matter the relief can be given
to the petitioner and so the petition is partly allowed.
Relief in terms of prayer clause (C) is granted to the
petitioner. Rule made absolute in those terms only.
Sd/- Sd/-
(SANGITRAO S PATIL, J.) (T.V. NALAWADE, J.)
rsl
