Sanjay Lalbahadur Divedi vs Shrikrishna Vyayam Shala

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Bom) 228

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
B.P. DHARMADHIKARI, J.
Sanjay Lalbahadur Divedi,... PETITIONER
Versus
Shrikrishna Vyayam Shala, ... RESPONDENTS
WRIT PETITION NO. 3088 OF 2005
and
WRIT PETITION NO. 5196 OF 2009
with
WRIT PETITION NO. 4989 OF 2008
WRIT PETITION NO. 3088 OF 2005
Decided on : FEB. 15, 2010.

Advocates appeared:
Shri Anand Parchure and Shri Shrikant Saoji, Advocates for the Petitioner.
Shri A.S. Kilor for Respondents No. 1 & 2.
Shri P.D. Kothari/ Shri V.A. Thakare, AGPs for Respondent No. 3.
Shri Amol Mardikar, Advocate for Respondents No. 3 & 4. Smt. T.D. Khade, Advocate for Respondents No. 1, 2 & 5. .....

Headnote:Maharashtra Educational Institution (Management) Act, 1976 - Section 5 - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rule 6 - Attaining requisite qualification - Necessary qualification for a teacher not attained in 5 years by petitioner, a temporary teacher - Was sent on deputation meanwhile another teacher was appointed - Action challenged - Untrained teachers are appointed on yearly basis - If not attain necessary qualification he has to leave - Even after attaining qualification they have to compete with others. - 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 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.
The petitioner in W.P. 4989/2008 cannot be reinstated with back wages, consequential benefits and continuity of services only because of the judgment in W.P. 1833/1994 as GR No. SSN- 2690/(108) Secondary Education-2 is not applicable to the him and no interference is warranted with report or findings recorded by respondent 5 therein. Similarly no fault can be found with judgments of School Tribunal impugned respectively in W.P. 3088/2005 or in W.P. 5196/2009. Consequently all the three writ petitions are dismissed. Rule discharged in all the matters with no order as to costs.

JUDGMENT :

Writ Petition No. 4989 of 2009 was closed for judgment after hearing petitioner Santoshkumar in person and advocates for the respondents. Then W.P 3088 of 2005 where same question arises came up for final hearing & W.P. No. 5196 of 2009 was listed for admission. Later two petitions were heard finally together with consent of all advocates there. They were also informed about the Writ Petition No. 4989 of 2009, already closed for judgment then.

2. Writ petition 4989/2009 under Art. 226 & 227 of the Constitution of India is fall out of judgment dated 19/9/2005 delivered by me in W.P 1833/1994 on 19/9/2005 directing.

Education Officer, Secondary, Z.P Yavatmal (Resp. 5 there & here) to find out whether time to procure B.Ed. qualification in second proviso to Rule 6 of Maharashtra Employees Of Private Schools (Conditions of Service) Regulation Rules, 1981, hereinafter 1981 Rules framed under the Maharashtra Employees Of Private Schools (Conditions of Service) Regulation Act, 1977 (1977 Act for short), was/is extended further and whether, therefore, the acquisition of B.Ed. training qualification by Petitioner Santoshkumar was within time. If it was within time, this Court also found that Petitioner would in that case be entitled to reinstatement in service. On 27/10/2005 the respondent 5 education officer issued directions to respondent 3 & 4 to reinstate petitioner as per this judgment. That direction was set aside on 23/11/2005 by the Division Bench of this Court in W.P 5771/2005 after noticing violation of principles of natural justice and education officer was directed to take fresh decision within one month after hearing both sides. Accordingly on 21/1/2006 education officer has given his finding/report that last extension in that respect was till June, 1995 and thereafter time limit is not extended at all. He also recorded contention of petitioner that said time limit was for those untrained teachers who joined before 7/2/1974 or 10/2/1989 and as petitioner came to be appointed on 28/6/1990, government resolution dated 10/2/1994 granting last extension up to June,1995 is not applicable to his case.

3. Writ petition has been filed by petitioner through Adv. S. Dhole and at the time of issuing notice in the matter on 1/12/2008 this Court recorded same stand of advocate of petitioner Santoshkumar with further contention that there was no time limit prescribed in cases like his to obtain the training qualification. Said advocate was then heard on 2 or 3 occasions by this Court and after 24/7/2009 the petitioner has started appearing in person. The prayers in the writ petition are :

"(i) require respondents to reinstate the petitioner to his original post with back wages & consequential benefit and continuity of services in view of the judgment dated 19/9/2005 in W.P. 1833/1994 as GR no. SSN2690/(108) Secondary Education2 is not applicable to the petitioner.; (ii) grant any other relief deemed fit in the circumstances of this petition & (iii) saddle the costs of petition upon the respondents". However, no technical objections as to its form or pleas were raised by any of the respondents and the entire arguments have been to demonstrate incorrectness or otherwise of the report or findings dated 21/1/2006 recorded by respondent No. 5.

4. Initial facts are mentioned by me in the judgment dated 19/9/2005 & show that petitioner had joined on 27/6/1990 and being untrained, he was appointed for 199091 session. On 29/6/1991 he was again appointed for 199192 session. On 8/5/1992 he was sent on deputation for completing B.Ed. training but on 25/6/1992, he was not allowed to join duties. He filed Appeal no. 110/92A and School Tribunal granted him interim reinstatement on 22/7/1992. He was however reinstated from 5/3/1993 because of contempt petition 220/1992 filed by him in this Court. On 30.3/1993 he was again terminated mentioning that the management did not require his services and he filed Appeal no. 73/1993A in which School Tribun

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