Bombay High Court
Pranita U. Parab vs State Of Goa, Thr. Its Chief Secretary ... on 12 March, 2025
Author: M. S. Karnik
Bench: M. S. Karnik
2025:BHC-GOA:514-DB
2025:BHC-GOA:514-DB
WP NO.1580 OF 2024 (F)
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.1580 OF 2024 (Filing No.)
Smt. Pranita U. Parab
Wife of Shri Uday Parab
59 years of age, Teacher,
R/o H.No.554/1, Ubo Dando,
St. Cruz, Tiswadi Taluka Goa. ... Petitio e
Versus
1 State of Goa
Through its Chief Secretary
Having office at Secretariat,
Porvorim Goa.
2 The Director of Education
Directorate of Education,
Having office at Porvorim Goa.
3 Shri Shantadurga Higher Secondary School,
The Chairman
School Managing Committee Bicholim Goa
4 Shri Rama L. Patkar
59 years of age,
Principal,
Shri Shantadurga Higher Secondary School,
Bicholim Goa. ...Respo de ts
Mr S. S. Kantak, Senior Advocate with Ms Saicha Dessai, Ms Neha
Kholkar, Mr Simoes Kher, Advocates for the petitioner.
Mr Devidas Pangam, Advocate General with Mr Deep Shirodkar,
1 25
::: Uploaded on - 20/03/2025 ::: Downloaded on - 22/03/2025 07:19:46 :::
WP NO.1580 OF 2024 (F)
Additional Government Advocate for respondent Nos.1 and 2.
Mr V. A. Lawande with Mr Parimal Redkar and Mr S. Gurav, Advocates
for respondent No.3.
Mr Sudesh Usgaonkar, Senior Advocate with Ms Maria Rosette Pereira,
Advocate for respondent No.4.
CORAM: M. S. KARNIK,
VALMIKI MENEZES &
NIVEDITA P. MEHTA, JJJ.
DATED : 12th MARCH 2025
JUDGMENT ( Per Nivedita P. Mehta, J.)
1) The distinction between the two positions adopted by this
Court concerning the interpretation of the Circular dated 29.05.1992
constitutes the basis of this reference.
2) In the case of Rajan N. Bandekar vs. State of Goa, Writ
Petition No.2065 of 2021(F), this Court held that teachers from the
Vocational Stream were not entitled to promotion to the post of
Headmaster/ Principal in terms of the Goa School Education Act, 1984
he ei a te e e ed to as the A t, 1 4 , and Rules of 1986. It also
held that Circular dated 29.05.1992 would not entitle a vocational
teacher to be brought under the provisions of the Act, 1984 and Rules,
1986.
2 25
WP NO.1580 OF 2024 (F)
3) A subsequent judgment of a Coordinate Bench in Subhash
Laxman Nerurkar Vs State of Goa and other, 2024 SCC OnLine
Bom 1402 in paragraph 6 which read thus:
A perusal of the language of Circular would indicate, that
though the appointment of vocational teachers earlier thereto, was
under the scheme by the Central Government, however consequent
to the Circular dated 29.05.1992 all the teachers so appointed under
the Central Government Scheme stood absorbed in the Regular
Cadre under the Act of 1984 and the Rules framed thereunder.
This would clearly indicate that the employment of the petitioner
stood governed by Rule 78 of the Rules 1986 framed under the Act
of 1984. On this ground therefore, we are not in agreement with
hat has ee held i Raja (a dekar's ase that pro otio ere
different for the reason that it does not consider the language of
Circular of 29.05.1992 which has the effect of bringing the
engagement of teachers under the Central Scheme, under the Act of
1984 but is based upon reliance on the statement that the seniority
list was separately maintained. As stated earlier the effect of
applying the Act of 1984 to the teachers engaged under the scheme
was making Rule 78 applicable to them .
Thus, in Subhash Laxman Nerurkar (supra), a view contrary
to the one taken in Rajan Bandekar (supra) was taken, holding that
on a plain interpretation of the very same Circular dated 29.05.1992, the
Vocational Teachers were entitled to the benefits of Rule 78 of the Goa
School Education Act, 1984 and Rules of 1986 and therefore entitled to
be promoted to the post of Headmaster/Principal in the General Stream.
The Coordinate Bench further held that it disagreed with the view taken
in Rajan Bandekar (supra).
3 25
WP NO.1580 OF 2024 (F)
4) Su se ue tl , the a o e e tio ed jud e ts taki o ta
views came up for consideration before yet another Coordinate Bench in
Pranita Parab Vs. State of Goa through its Chief Secretary and three
others, which after considering the same vide order dated 10.01.2025 has
held in paragraphs 6 and 7 as under:
6. Thus, e i d, there are t o di er e t ie s e pressed by two
separate Division Benches of this Court as regards the interpretation
of the Circular dated 29th May 1992. Though judgment in
Subhash Laxman Nerurkar (supra) was rendered subsequent
to the judgment rendered by the Division Bench in Rajan
Bandekar (supra) and Subhash Laxman Nerurkar (supra)
makes a mention of the judgment in the Case of Rajan Bandekar
(supra) however, as per the requirement of law if the Division Bench
rendering the judgment in the case of Subhash Laxman
Nerurkar (supra) was not in agreement with the judgment in
Rajan Bandekar (supra), it ought to have referred the matter for
decision to a larger Bench. Instead, recording its disagreement, the
subsequent Division Bench judgment in Subhash Laxman
Nerurkar (supra) has taken a view contrary to the view expressed
earlier in the case of Rajan Bandekar (supra) as to the
interpretation of Circular dated 29th May 1992.
7. In the aforesaid view of the matter, we find it appropriate to
submit the papers of this case to the Ho ' le )hie Justi e u der
Chapter I Rule 8 of the Bombay High Court Appellate Side Rules
1960 for referring the matter to a larger Bench for authentic
pronouncement and decision on the issue relating to correct
interpretation of the Circular dated 29th May 1992.
4 25
WP NO.1580 OF 2024 (F)
5) In terms of Rule 8 Chapter I of the Bombay Appellate Side Rules
1960, the Ho le Chie Justi e as pleased to e e the conflicting views
to a larger Bench by a reference order of 22.01.2025 for which the present
Bench was constituted.
6) Thus, the question referred to us is whether the circular dated
29.05.1992 confers upon the teachers recruited to the vocational stream,
the right to being promoted to the post of Principal/Headmaster at par
with the teachers appointed in the regular post under the Goa School
Education Act, 1984 read with Rule 78 of the Rules, 1986?
7) It is the case of the petitioner that she was appointed as a Teacher
Grade-I, in Shri Shantadurga Higher Secondary School on 20.06.1990
and her service was confirmed for the post of Teacher Grade-I on
16.07.2003. On the recommendation of the Departmental Promotion
Committee, she was granted Senior Scale by letter dated 28.01.2005
w.e.f. 19.07.2002. It is further the case of the petitioner that there exist
two streams of teache s i the Hi he Se o da S hool i.e. e e al
st ea a d o atio al st ea . The e e al st ea o sists o tea he s
who teach Arts, Science and Commerce, while the vocational stream
includes teachers who teach vocational subjects such as Accounts,
Auditing, Taxation, Banking, and Insurance and Office Management.
5 25
WP NO.1580 OF 2024 (F)
8) The petitioner states that she has been employed as a vocational
teacher (Grade-I) and has taught Accounts, Auditing and Taxation at
Shantadurga Higher Secondary School for the last 34 years. Initially, the
appointment of the vocational teacher was under a Central Government
Scheme and by Circular dated 29.05.1992 issued by the Directorate of
Education, the vocational stream was brought under the provisions of
Goa, School Education Act of 1984 and Rules of 1986. The said Circular
came up for consideration before this Court firstly in the case of Rajan
Bandekar (supra) and then in the case of Subhash Laxman
Nerurkar (supra). The petitioner states she is the senior-most among all
the teachers teaching at the school, including teachers from both the
general as well as vocational streams. Respondent No.4 teaches
Economics in the general stream (Commerce) and is the senior-most
teacher in the general stream and the senior-most teacher in the seniority
list of Grade-I teachers prepared including only the teachers from the
general stream. On 29.04.2024, she wrote to the Principal of the said
school requesting him to prepare a composite seniority list of all the
teachers in the school (both general and vocational stream) in view of the
judgment of this Court in Subhash Laxman Nerurkar (supra),
however, no such seniority list was prepared. As such, respondent No.3
has failed to adhere to the procedure prescribed under Rule 87A of the
Goa School Education Rules while preparing the seniority list. Since the
post of the Principal was vacant, she wrote a letter to respondent No.3
6 25
WP NO.1580 OF 2024 (F)
on 13.06.2024 requesting to appoint her as a Principal of the said school
since she holds all qualifications prescribed under Rule 78 of the Goa
School Education Rules required to be promoted to the post of Principal
and also a letter to the Deputy Director of Education dated 19.06.2024
to consider her for the post of Principal. However, respondent No.3
conducted a meeting of the Departmental Promotion Committee on
21.06.2024 and appointed respondent No.4 to the post of Principal. As
such, the same is contrary to Rule 78 of the Rules, 1986 which is
impugned in this petition.
9) By affidavit-in-reply submitted on behalf of respondent no.(s) 1
and 2, it has been submitted that the vocational stream was first
introduced vide a circular dated 28.04.1988 and that teachers of the
vocational stream are not eligible for the post of Principal, hence, the
state has never promoted them to the post of Principal. The staffing
pattern of the general stream as well as the requisite educational
qualifications of the faculty of the general stream in educational
institutes in the State is covered under the Act and the Rules and when
the vocational stream was introduced vide circular dated 28.04.1988, the
Act and Rules were already in force. The vocational stream was never
brought within the purview of the Act and the Rules because subjects
being taught under the vocational courses are of a transient nature that
changes with time because they are need-based, on the basis of the region
7 25
WP NO.1580 OF 2024 (F)
and time they were being taught in, to students who did not wish to
pursue education beyond the 10th standard. Further, courses under the
vocational stream may not be relevant after a certain period in time or for
a different region, therefore, the appointment of vocational teachers was
for a temporary period of one year and used to be renewed for one-year
periods.
10) Further, it has been submitted in the affidavit-in-reply of
respondent no.(s) 1 and 2 that there is no post of Grade-1 teacher under
the vocational stream. The requisite qualifications for posts under the
general stream as well as the vocational stream are also different and no
teaching qualifications such as B.Ed. or D.Ed is prescribed for full-time
teachers of the vocational stream. While appointing vocational teachers
some schools styled them as Teacher Grade-1, it has been submitted that
this is an error in nomenclature and no such post of Grade-1 teacher in
the vocational stream exists under the scheme. There is a separate cadre
for teachers under the general stream and separate seniority lists are
maintained for the two streams. It has further been submitted that the
office memorandum dated 10.06.2002 was issued in terms of Rule 103
of the Rules, extending all the service benefits including pension to full-
time teachers in the vocational stream. In so far as the circular is
concerned, the i ula as o l i the o te t o pupil s u ds, te
fees, etc. and not in terms of teachers, qualifications, etc.
8 25
WP NO.1580 OF 2024 (F)
11) Respondent no.3 filed an affidavit in reply iterating largely the
same position as respondent no.(s) 1 and 2 and submitted that the
petitioner never challenged the seniority list which was prepared
separately for the vocational stream and the general stream and had
acquiesced to the same. The nomenclature in the communication
referring to the petitioner as a Grade- I teacher could not confer upon
her rights to be considered for promotion to the post of principal.
12) In the affidavit-in-reply filed by respondent no.4, the contents of
the reply filed on behalf of respondent no. 3 are adopted and it is further
submitted that his appointment to the post of principal is not vitiated on
any of the grounds or contentions advanced by the petitioner.
Respondent no. 4 submitted that if the case of petitioner is allowed, it
would cause him severe prejudice and grave hardship if his seniority is
altered at the fag end of his career.
13) Though we are not required to consider the case of the petitioner
and respondents on their merits, we have reproduced the stands taken by
each of the parties to the petition only for the purpose of addressing the
basic controversy which is the subject matter of the reference before us.
14) The learned Counsel for the parties have advanced the following
submissions; learned Senior Advocate Mr. Kantak for the petitioner
submitted:
9 25
WP NO.1580 OF 2024 (F)
a) The petitioner was appointed as a Teacher Grade-I in Respondent
no.3 School on 20.06.1990 and her services were confirmed as
Teacher Grade-I on 16.07.2003. The petitioner was granted
Senior Scale by letter dated 28.01.2005 w.e.f. 19.07.2002. Senior
Scale is granted to the permanent teacher after they complete 12
years of service.
b) Initially the appointment of the vocational teacher was under a
Central Government Scheme. By a Circular dated 29.05.1992
issued by the Directorate of Education the vocational stream was
brought under the provisions of Goa School Education Act, 1984
and Rules 1986. The Circular came up for consideration before
this Court in Rajan Bandekar (supra) and in Subhash Laxman
Nerurkar (supra). This Court in the later judgment held that
consequently to the Circular dated 29.05.1992, all teachers of
Vocational Stream stood absorbed in the regular cadre under the
Goa School Education Act, 1984 and the Rules of 1986 as framed.
c) The learned Senior Advocate impressed upon us that Chapter
VII: Recruitment and Terms and Conditions of Service of
Employees of Private Schools, specifically Rule 74 which provides
for recruitment and promotion and Rule 78 which prescribes
qualification for the post of the Principal of Higher Secondary
School for filling the post by promotion which are: a) A Maste s
Degree from a recognized university; b) Degree in Education or
10 25
WP NO.1580 OF 2024 (F)
teaching from a recognized University; and c) At least seven years
of teaching experience as a Grade-I teacher in a Higher Secondary
School or in Primary Teachers Training Institute as Senior
Instructor. Minimum qualifications for the appointment of
teaching staff apply to the petitioner. The petitioner is qualified
as per the requisite qualification as mentioned in the table at serial
no. 1 and serial no. 5 and her appointment mentions that she is
appointed as Grade-I and therefore entitled to be appointed to the
post of Principal. Rule 86 (2) was pointed out to support the
contention that the vacancy of the Principal, Higher Secondary
School, shall be filled up by promotion subject to the eligibility
conditions prescribed in Rule 78. While filling up of these posts,
the management shall first explore the possibility of selecting the
senior most teacher from the next below category indicated in
Column 5 of the table under rule 78. Rule 87 A was also relied on
which contemplates maintaining of Seniority list. Therefore, the
petitioner as per the Rules should have been promoted to the post
of Principal being the senior most teacher including teachers from
both General as well as vocational streams.
d) Respondent no.4 is a Grade-I teacher and is the senior most
teacher in the general stream which is a seniority list maintained
for the General Stream teachers. The petitioner had requested to
prepare a composite seniority list of all teachers in school both
11 25
WP NO.1580 OF 2024 (F)
general and vocational streams in view of the judgment of this
Court in Subhash Laxman Nerurkar (supra). However, no
such seniority list was prepared. The petitioner had also requested
respondent no.3 and the Deputy Director of Education to
appoint her as Principal of the school as she holds all the
qualifications prescribed under Rule 78 of the Goa School
Education Act 1984 and Rules 1986.
e) The Goa School Education Act, 1984 and Rules 1986 make no
distinction between teachers of the general stream and vocational
stream as far as the seniority of the teachers is to be considered.
Teachers of both the streams are therefore eligible and equally
entitled to promotion to the post of Principal and the said view is
supported by the judgment of this Court in Subhash Laxman
Nerurkar (supra). Respondent no.3 failed to adhere to the
procedure as prescribed under Rule 87 A. The promotion of the
respondent no.4 appointment is contrary to the Act and Rules.
Hence, the impugned decision is contrary to Rule 78 of the Rules.
In short, Mr Kantak supports the view taken in Subhash
Laxman Nerurkar (supra).
15) The learned Advocate General appearing for the State, has
advanced the following submissions opposing those argued by the
petitioner:-
12 25
WP NO.1580 OF 2024 (F)
a) Teachers of the vocational stream are not eligible for
promotion to the post of Principal and no teacher from the
vocational stream has ever been promoted to the post of
Principal. Although, the Act,1984 and the Rules,1986
were in force when the scheme for appointment of
vocational streams was introduced, vocational teachers
were never brought within the purview of the Act,1984
and the Rules,1986. Therefore, vocational staff has never
been made part of the general stream and separate seniority
lists are maintained for the staff under the vocational
stream.
b) The staffing pattern for the vocational stream is also
different as there is a post of Vice-Principal, which is not
available for the general stream. Further it is submitted that
nine higher secondary schools in Goa have vice-principals
from the vocational streams.
c) The vocational staff are extended certain benefits from
time to time, such as vide letter dated 19.02.1992, only
earned leave, maternity leave GPF account, leave
encashment, LTC and certain other benefits were
extended. Similarly, vide Office Memorandum dated
10.06.2002 extended all the service benefits including the
13 25
WP NO.1580 OF 2024 (F)
pension scheme to the full-time teachers in vocational
stream from 07.01.2002 were extended.
d) The circular was issued only in the context of expenditure
incurred on office administration, examinations, collection
o pupil s u ds, te ees, et . a d ot i the o te t o
teachers, qualifications, etc. And if the circular covered the
vocational teachers under the Act, 1984 and merged them
into the general stream, the question of issuing further
Circulars/Office Memorandums, such as the Office
Memorandum dated 07.01.2002 to extend benefits would
not arise.
e) Summarily, the case of the State is that the circular only
extends financial benefits to the vocational stream.
16) The learned counsel on behalf of respondent no. 3, Mr.
Vishnuprasad Lawande, adopted the arguments as advanced by the
learned Advocate General, arguing on behalf of Respondent nos.1 and 2
and submits that the ruling in Rajan Bandekar (supra) covers the case
of the petitioner and that the rights of the teachers have been decided
conclusively therein. The learned counsel further placed reliance on the
uli o the Ho le Sup e e Cou t in K.S. Mahalingegowda v.
Secretary to Government, Department of Vocational Education,
Karnatak; 1995 Supp (2) SCC 955 and stated that it continues to
14 25
WP NO.1580 OF 2024 (F)
have binding effect in holding that no parity in the service conditions of
teachers of the vocational stream and the regular stream can be claimed.
17) The learned Senior Advocate, Mr. Sudesh Usgaonkar appearing
of respondent no. 4 advanced the following submissions:
a) It was necessary to place the vocational stream at par with
the general stream in order to make the expense incurred by
the Higher Secondary School imparting vocational
education on office administration, examination, etc
admissible under the Rules. The circular dated 29.05.1992
was issued for this purpose.
b) Rule 14o hi h p o ides o Pupil u d a d Rule 144
p o idi o Te ees/Tuitio ees o the Rules would
not be applicable to the vocational stream as an outcome of
the circular.
c) Bearing this in mind, it would be inappropriate to interpret
circular dated 29.05.1992 to mean that it applies to the
Schools and their Teachers concerning all the aspects
covered under the Act,1984, including recruitment,
seniority and teaching and non-teaching staff. And if the
circular were to apply to the aforesaid aspects, the state was
in no way precluded from stating so.
15 25
WP NO.1580 OF 2024 (F)
d) There is no regularisation of the appointment of the
petitioner as made by respondent no.2. The letter of
appointment makes clear that the appointment of the
petitioner was temporary.
e) Reference to Grade-I bears no significance because the
grade connotes only monetary incentives and does not raise
the rank of the employee in the cadre.
18) Rival submissions made by the respective Counsel for the parties
fall for our consideration in view of the reference made to this Full
Bench.
19) At the very outset, it is pertinent to note that at no stage since the
introduction of the vocational stream in the State of Goa in 1988-89 has
there been any interchanging between the teachers from the vocational
stream and the general stream. Their qualifications for initial
appointments and promotional avenues have been different and distinct.
Merely because they were treated at par with the teachers from the
general stream for extension of financial benefit, that by itself would not
make them entitled to promotion in the general stream.
20) Before proceeding further, it is crucial to understand the
controversy in issue, to peruse the contents of the Rules pertaining to
16 25
WP NO.1580 OF 2024 (F)
promotion to the post of the principal. Rule 78 has been extracted
hereunder for convenience:
78. Minimum qualifications for the appointment of
teaching staff.--The qualifications for the recruitment/promotion
of the teaching staff in the recognised schools, whether aided or not
shall be as prescribed in the following table which is subject to change
in future on the recommendation of the Advisory Board or the
directives of the Central Government to fall in line with the National
Educational Policy.
Sr. Name of Qualifications for Qualificati- Pay
No. the post Direct Recruits ons for scales
promotees subject to
Upper Qualifcation
revision
Age
Limit
1. Principals 45 (i) IInd Class i A Master's 1100-
of Hr. years Master's Degree from a 1600
Secondary Degree from a recognised (pre-
School/Pry recognised University; revised)
. Trs. University; (ii) Degree in
Training (ii) Degree in Education/Te
Institute Education of aching from a
Teaching; and recognised
(iii) 10 years University;
teaching and
experience, out (iii) At least 7
of which at years teaching
least 5 years in experience as
17 25
WP NO.1580 OF 2024 (F)
Hr. Secondary Gr. I teacher
Schools as Gr. in the Hr.
I teacher or in Secondary
Pry. Trs. School or a Sr.
Training Instructor in a
Institute as Sr. Pry. Trs.
Instructor, as Training
the case may Institute, as
be, and the case may
remaining 5 be.
years in
equivalent OR
posts.
Headmasters
of Secondary
Schools under
the same
Management
having at least
7 years service
out of which at
least 5 years in
Higher
Secondary
School as Gr. I
teacher or in
Primary
Training
Colleges as Sr.
Instructor as
the case may
be.
18 25
WP NO.1580 OF 2024 (F)
2. .....
3. .....
4. .....
5. Gr. I 35 i A Master's Asst. Teacher/ 1640-
Teacher/ years Degree in the Jr. Instructors 2900
Senior subject; and with 3 yrs. post
Instructor training
(ii) A Degree service in the
in Education/ school/Pry.
Teaching Trs. Training
failing which, Institute and
possessing
nd
A 2 class qualifications
Master's prescribed to
Degree in the the direct
subject. (He recruit in Col.
his B. Ed.
degree at his
own cost
within 5 years
and he shall
not be
confirmed
without
training
qualification)
19 25
WP NO.1580 OF 2024 (F)
The qualifications prescribed for vocational teachers are not in any
manner comparable with the qualifications prescribed for Grade I
teachers or trained graduate teachers in the regular stream.
21) Rule 86 of the Rules has been extracted hereunder for
convenience.
86. Filling of vacancies--Notwithstanding anything
contained in rule 78, every vacancy in an aided school shall be
filled up by promotion failing which by direct recruitment, in
accordance with such Rules as may be framed by the Director of
Education in this behalf and notified/circulated separately:
["Provided that the claim of any employee already working under
the said Management in the Undergraduate category possessing
the requisite qualifications for the direct recruit shall be given due
consideration while filling up the post with direct recruitment."]
(2) The vacancy of Principal, Higher Secondary School/Primary
Training Institutes, Headmasters of Secondary Schools and
Middle Schools, and the Asstt. Headmasters of Secondary Schools
shall be filled up by promotion subject to the eligibility conditions
prescribed in rule 78. While filling up of these posts, the
management shall first explore the possibility of selecting the senior
most teacher from the next below category indicated in column 5
of Table under rule 78. While making such selection the
management shall also give very careful consideration and shall
select the best qualified and most competent person among those
available for selection/appointment to the post. Seniority shall be
the first criteria subject to fitness and merit. If the claim of a senior
eligible teacher is by-passed, the reason for the same in writing will
20 25
WP NO.1580 OF 2024 (F)
have to be recorded in the minutes by the promotion committee.
The claim of the senior qualified teacher shall not be by-passed
arbitrarily without tangible reasons.
Explanation: -- Common managements running the secondary
schools as well as Higher Secondary schools, shall consider the
claims of the Headmasters of Secondary schools in the order of
interse seniority for the promotion to the post of Principal of Higher
Secondary Schools subject to eligibility conditions prescribed in rule
78.
(3) The management shall make appointment of Heads only on
probation for a year in the first instance and communicate full
particulars with their bio data to the Director of Education for his
approval. No Head of the school shall be confirmed without the
prior approval of the Director of Education.
(4) Every vacancy which is to be filled up by direct recruitment
shall be notified to the Employment Exchange or in the local
newspapers as the case may be as per the Rules applicable to
Government Offices while recruiting the corresponding posts in
Government schools. However, the harness cases shall be regulated
as per the Rules applicable to Government offices and the Director
o mdu atio shall e the o trolli authorit .
22) It is pertinent to note that to be eligible for promotion as
Principal, Rule 78 inter alia requires that the candidate must have at least
seven years of teaching experience as Grade-I teacher in a Higher
Secondary School. The Teachers in the vocational stream are appointed
as full-time teachers in terms of the 1988-89 Scheme. There is no post of
Grade-I teacher under the aforesaid scheme.
21 25
WP NO.1580 OF 2024 (F)
23) It is settled law that the Circular cannot alter the provisions of the
Act, 1984 or the Rules, 1986. The teachers in the general stream are
covered by the provisions of the Act, 1984 and Rules, 1986. The teachers
in the general stream have a right to be considered for promotion and the
senior-most teacher in the cadre is to be promoted to the post of
principal. The vocational stream was never a part of the general stream
or cadre. The staff of the vocational stream in terms of the scheme have
availed altogether separate promotional avenues all this while, therefore
the Circular dated 29.05.1992 would not confer any eligibility to a
vocational teacher for promotion to the post of the Principal. Merely
because the vocational teachers were treated at par with the teachers of
general streams for extension of financial benefits, that itself cannot
entitle them to seek promotion in the general stream, having availed of
the promotional avenues exclusively in the vocational stream.
24) It is pertinent to mention here that the Act, 1984 nor the Rules,
1986 have been amended to include teachers of the vocational stream for
consideration in promotion to the post of Principal. It is a well-settled
principle of law that a circular acts as an administrative instruction to the
executive and has no force of law unless it is issued under powers
delegated under a legislation. The scheme of the Education Act provides
for powers to make Rules under Section 29 of the Act, 1984 only with
22 25
WP NO.1580 OF 2024 (F)
regard to teachers covered in the regular stream as referred to in Rule 78.
Under Rule 140, schools are empowered to charge fees to defray
expenditures towards pupils funds and tuition fees as per Rule 144.
However, to defray fees paid by students in the vocational course, there
would be no power conferred on the schools, to charge such a fee. The
Circular dated 29.05.1992, from its plain reading, appears to be one
issued to all the schools only to enable them (though the power is not
strictly provided in the Act to do so) to also charge tuition fees /term
fees/pupils fund for vocational courses. This would not confer any right
on the vocational teachers to be treated at par with regular teachers.
Neither can the circular supplement the law nor can it give effect to an
alteration in the structure of personnel that is, in any manner, repugnant
to what is provided for, expressly, by the Rules.
25) If by way of the circular, the vocational teachers are made part of
the general stream, this would prove prejudicial to the rights of the
teachers of the general stream. To alter the effect of the Act and the Rules
is not something that can be done by way of a Circular. The only way
that vocational teachers could be brought into the general stream is by
way of an amendment to the Act and the Rules.
26) In Subhash Laxman Nerurkar (supra), the petitioner had
challenged the denial by the Directorate of Education to the post of
23 25
WP NO.1580 OF 2024 (F)
P i ipal. The petitio e the ei possessed a Maste s De ee i la
which would not have satisfied the basic qualification of a Grade-I
teacher under Rule 78 since the said Rule requires a Maste s De ee i
the subject to be taught. In that case, the petitioner, who was appointed
as a Computer Teacher in the vocational stream to teach a subject of
Co pute S ie e o tai ed the uali i atio o a Maste s De ee in
Law, (a subject different from the one he was appointed to teach) only in
the year 2009. Therefore, the petitioner was not qualified as a Grade-I
teacher and could not be considered to be a part of the general stream. It
is our view the Bench was called upon o l to o side the petitio e s
eligibility for the post of Headmaster/Principal in the general stream and
need not have considered the applicability of the Circular.
27) The decision of this Court in Rajan Bandekar (supra) placed
elia e o the uli o the Ho le Sup e e Cou t i K.S.
Mahalingegowda (supra) and held that the vocational stream is
distinct from the general stream and that vocational teachers are not
eligible for the post of Principal. Further, this Court noted that the
circular was issued only to extend financial benefits and for no other
purpose.
28) It is our considered view that the Circular dated 29.05.1992
cannot be read in any manner contrary to or inconsistent with the Act,
24 25
WP NO.1580 OF 2024 (F)
1984 and Rules, 1986. For the reasons stated above, we find ourselves in
agreement with the view taken by this Court in Rajan Bandekar
(supra) and respectfully disagree with the view taken in paragraph 6 in
Subhash Laxman Nerurkar (supra). The question under reference is
answered accordingly.
29) Place Writ Petition No.1580 of 2024(F) before the regular Bench
for decision on merits.
(M.S. KARNIK,J.)
(VALMIKI MENEZES,J.)
(NIVEDITA P. MEHTA,J.)
25 25
