Shivshakti Shikshan Sanstha Kotha (Veni) & another vs Nilkanth Kawaduji Shivankar & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2004 Supreme(Bom) 1452

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)
Dharmadhikari B.P., J.
Shivshakti Shikshan Sanstha Kotha (Veni) another .... Petitioners.
Versus
Nilkanth Kawaduji Shivankar another.... Respondents.
Writ Petition No. 1513 of 1991, decided on 1/26-10-2004.
Advocates appeared :
M.G. Bhangde, for petitioners.
A.B. Choudhari, for respondent No. 1.
T.R. Kankale, A.G.P., for respondent No. 2.

Headnote:Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 - Schedule B, Item II, Clause I(v) - Eligibility for appointment as Assistant Teacher. - A candidate seeking appointment to post of Assistant Teacher in substantive capacity for teaching subjects, should possess qualification of graduation with B.Ed. as training qualification. - Held, that a candidate having B. Com., B.P. Ed. qualification is not eligible to be appointed as Assistant Teacher in substantive capacity for teaching the subjects. The rules require that such Assistant Teacher should possess qualification of graduation with B.Ed. as training qualification. Respondent No. 1 voluntarily sought to apply for the post of Assistant Teacher in response to advertisement published by the Management in June, 1986. Even on that occasion, post of Physical Training Instructor was advertised but respondent No. 1 did not apply for the said post and applied for the post of a Special Teacher. Thereafter, he accepted the appointment as untrained teacher in lower pay-scale than that of trained Physical Training Instructor and worked for about one year. Again on second occasion, after the advertisement he applied for the post of Assistant Teacher and accepted similar appointment for a period of one year. As respondent No. 1 was not holding B. Ed. qualification he could not have been appointed as a trained subject teacher (Assistant Teacher) on probation for a period of two years. On second occasion, i.e. in November, 1987, the Education Officer specifically refused approval to the appointment of respondent No. 1 by putting a remark that "trained candidate should be appointed". It is admitted position on record that respondent No. 1 had also obtained No Objection Certificate for B. Ed. Training on deputation. In such circumstances, it cannot be said that the management has breached mandate of Section 5 by not appointing respondent No. 1 on probation for a period of two years. Physical Training Instructors having graduation and training qualification of B.P.Ed. have been given same pay scale as that of Trained B.Ed. Teachers. However, this separate treatment clearly shows that a teacher with qualification prescribed for Physical Training Instructor cannot be a substitute for a training graduate teacher holding qualifications as mentioned in Part III, Entry 8, 9 or 10. It is thus clear that as clarified by the State Government in its resolution dated 14.5.1987, there is a provision already made in MEPS Rules, 1981 and B.P.Ed. and B.Ed. holders are treated separately. The impugned judgment of School Tribunal dated 25.4.1991 is unsus tainable and misconceived and is quashed and set aside.

JUDGMENT - DHARMADHIKARI B.P., J.: - By this petition filed under Article 226 of the Constitution of India, the petitioner-management challenges the judgment dated 2-5-1991 delivered by the School Tribunal, Amravati and Aurangabad Division at Aurangabad in Appeal No. 129 of 1988-A. By this judgment, the School Tribunal has directed the petitioners to reinstate respondent No. 1 by quashing and setting aside the oral termination done on 25-6-1988 or 1-7-1988 and has further directed that respondent No. 1 should be reinstated as Assistant Teacher or as a physical education instructor within 40 days with continuity of service and back wages till he is allowed to resume his duties. In the alternative, the Government has been directed that an equal amount be deducted from the grant due and payable to the petitioner-management and the same be paid to the respondent No. 1-employee.

2. This Court admitted writ petition on 18-6-1991 and granted interim stay of reinstatement only. The back wages were ordered to be deposited within two months and respondent No. 1 was allowed to withdraw the amount on furnishing security.

3. The question involved in this petition is whether candidate holding B.Com., B.P.Ed. qualification is eligible to be appointed as trained Assistant Teacher. The necessary facts in brief are :

The present petitioner No. 1 is a Public Trust and it runs a Secondary School viz. Shivshakti Vidyalaya which is petitioner No. 2. Respondent No. 2 in this petition is the Education Officer of Zilla Parishad, Yavatmal. Respondent No. 1 employee admittedly possesses B.Com., B.P.Ed. qualification. He was initially appointed as Physical Training Instructor in petitioner No. 2 school for one academic year i.e. 1985-86 with effect from 2-9-1985 to 3-5-1986 in the pay scale of 365-760 which is applicable to trained graduate. On 20-1-1986, the Education Officer granted approval to his appointment for the period from 2-9-1985 till the end of Academic Session 1985-86. The services of respondent No. 1 employee stood terminated by efflux of time at the end of Academic Session 1985-86. Thereafter, the petitioners have issued advertisement on 17-6-1986, 29-6-1986 and 8-8-1986 for various posts including the post of Assistant Teacher and the post of Physical Training Instructor. Respondent No. 1 applied for the post of Assistant Teacher and on 18-8-1986, after his selection, he was appointed on probation for a period of one year as Assistant Teacher. This appointment was in the pay-scale of 335-680 as untrained teacher. On 18-12-1986, respondent No. 2. Education Officer granted approval only for one year i.e. till the end of Academic Session. His services again stood terminated at the end of that Academic Session. On 14-6-1987, the petitioner again issued advertisement inviting applications for appointment to the post of Assistant Teacher. On 22-6-1987, respondent No. 1 again applied for appointment as a Assistant Teacher. On 28-6-1987, respondent No. 1 was selected and appointed on probation for a period of one year as untrained Assistant Teacher in pay-scale of Rs. 335-680. The Education Officer, however, on 10-11-1987, refused to grant approval to him and remarked that "trained candidate should be appointed". At the end of Academic year 1987-88, the services of respondent No. 1 stood terminated. On 31-8-1988, respondent No. 1 filed appeal before the School Tribunal challenging the oral termination dated 1-7-1988 and 25-6-1988. On 2-5-1991, the School Tribunal has allowed this appeal with above directions. The School Tribunal has found that respondent No. 1 ought to have been appointed as Physical Training Instructor on probation for a period of two years in the year 1985-86 itself and there is no satisfactory explanation given by the petitioner-management as to why he came to be appointed on probation for one year. It further found that subsequent appointment of respondent No. 1 as Assistant Teacher in pay-scale of Rs. 335-680 applicable to un

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