1 WP - [SECTION]348-2003 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. [SECTION]348 OF 2003 1. [ENTITY] s/o Shrawan Gaikwad Age 46 years, occ. Service, presently working as Assistant Teacher in Shrirampur Education Society High School, Shriramput, Taluka Shrirampur, Dist. Ahmednagar. 2. [ENTITY] s/o Mhasu Dnawade, Age 38 years, Occ. Service, presently working as Assistant Teacher in Shrirampur Education Society High School, Shrirampur, Taluka Shrirampur, Dist. Ahmednagar 3. [ENTITY] w/o [ENTITY], (Smit d/o [ENTITY]) Age 41 years, occ. Service, presently working as Assistant Teacher in Shrirampur Education Society High School, Shrirampur, Taluka Shrirampur, Dist. Ahmednagar. 4. [ENTITY] d/o [ENTITY] Age 3[SECTION] years, occ. Service, presently working as Assistant Teacher in Shrirampur Education Society High School, Shrirampur, Taluka Shrirampur, dist. Ahmednagar. [SECTION]. [ENTITY] S/o [ENTITY], Age 29 years, Occ. Service, presently working as Assistant Teacher in Shrirampur Education Society High School, Shrirampur, Taluka Shrirampur, Dist. Ahmednagar Petitioners Uploaded on - 20/12/2017 Downloaded on - 23/12/2017 02:20:[SECTION]4 2 WP - [SECTION]348-2003 Versus 1. The [ENTITY], Through its Secretary, School Education Department, Maharashtra State, mantralaya, Mumbai. 2. The Director of Education, Maharashtra State, Pune. 3. The Deputy director of Education, Pune Division, Pune. 4. The Education Officer (Secondary), Zilla Parishad, Ahmednagar. Dist. Ahmednagar. [SECTION]. Shrirampur Education Society, Shrirampur, Tal. Shrirampur, Dist. Ahmednagar, Through its Chairman Shri [ENTITY] 6. The [ENTITY] Ahmednagar Respondents WITH CIVIL [CASE NUMBER] IN WRIT PETITION NO [SECTION]348 OF 2003 ([ENTITY] and others) Shri. [ENTITY], Advocate for petitioners Shri. [ENTITY], A.G.P. for respondent-State Shri. [ENTITY], Senior Counsel i/b. Mr. [ENTITY], Advocate for respondents [SECTION] and 6 Mr. [ENTITY], Advocate for intervenor Uploaded on - 20/12/2017 Downloaded on - 23/12/2017 02:20:[SECTION]4 3 WP - [SECTION]348-2003 CORAM : [ENTITY] & [ENTITY], JJ. RESERVED ON : 12-09-2017 PRONOUNCED ON : 20-12-2017 JUDGMENT (PER - [ENTITY], J.) :
1. Petitioners are before this Court seeking Mandamus to respondents 1 to 4 viz. the [ENTITY], Director of Education, Pune, Deputy Director of Education, Pune, Education Officer (Secondary), Zilla Parishad, Ahmednagar to direct the institution i.e. respondent no. [SECTION] to implement Circular dated 09-07-1987 in letter and spirit and appoint the petitioners accordingly and to give to them deemed date of appointment from the date of their eligibility to be appointed to the post of trained graduate teachers and to give them consequential benefits.
2. While issuing Rule in the present Writ Petition, the Court had directed not to make further appointments in the school without previous permission from the Court. Subsequently, there have been quite a few Civil Applications filed by respondents no. [SECTION] and 6 viz. Civil Applications no. 12428 of 200[SECTION], [SECTION]72[SECTION] of 2007, 7602 of 2008, 640[SECTION] of 2010 and 13[SECTION]87 of 2010 whereunder the respondent - management had been permitted to fill in the posts making clear 4 WP - [SECTION]348-2003 that appointments of the new incumbents would be subject to the result of the Writ Petition.
3. Respondent no. [SECTION] runs respondent no. 6 school having first to tenth standards and fifth to eighth standards are attached to its primary section. According to petitioners, 7[SECTION]% teachers for standards first to eighth shall possess S.S.C. D.Ed. educational qualification and 2[SECTION]% shall be having educational qualification B.A. B.Ed.
4. Referring to Circular dated 09-07-1987 issued by Director of Education, learned counsel for petitioners submits in the case of occurrence of vacancy of trained graduate teacher teaching first to eighth standards and if trained graduate teacher working in D.Ed. scale of pay is available, then, trained graduate teacher shall not be appointed from outside or open market but should be picked up from the employees, who is trained graduate teacher working on D.Ed. scale of pay, and be paid salary of trained graduate teacher appointing him in the 2[SECTION]% posts strictly meant for such employees.
[SECTION]. Learned counsel for the petitioners during the course of hearing, referred to decision of the Government dated 21-0[SECTION]-1979 purporting to be a resolution wherein in non-government secondary [SECTION] WP - [SECTION]348-2003 schools for standard fifth to seventh, the ratio of 2[SECTION]% : 7[SECTION]% (graduates and undergraduates) should be fixed in relation to general teachers. Prelude to the resolution refers to decisions and letters dated 28-11-1977, 09-0[SECTION]-1978, and dated 27-09-1971, whereunder after every three trained undergraduate teachers employed to teach classes of standard fifth to seventh, fourth teacher employed is to be graduate / trained graduate.
6. The petitioners' case is that they were appointed as Assistant Teachers in the pay scale of trained undergraduate teachers (as S.S.C. D.Ed. candidates). During the course of employment, they had improved their qualifications and had acquired Graduate Degree as well as Degree in Education.
7. Learned counsel appearing for petitioners refers to [SECTION] and [SECTION] dated 09-07-1987 and contends that the same are mandatory. Learned counsel goes on to submit that the circular further clarifies that in case of vacancy of teachers occurring for eighth standard to tenth standard, subjectwise number of trained graduate teachers working in D.Ed. scale are expected to be picked up from amongst such trained graduate qualified teachers in the subject and if such an employee is not available, with the prior permission of the Education Officer, such appointment can be made from open market.
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8. He contends, petitioners' representations to management as well as to the Education Officer, their legitimate requests in respect of their claim to hold the posts in 2[SECTION]% for trained graduate teachers, pursuant to various decisions of the State Government reflected in the resolutions and in the circulars issued from time to time, were not being attended to and were being ignored.
9. Learned counsel makes a grievance that despite the position being as aforesaid, respondent no. [SECTION] - management had appointed about 11 teachers from open market from the date on which the first petitioner had acquired qualification of trained graduate teacher.
10. It is contended that the Education Officer ought to have objected to such appointments having regard to circular dated 09-07-1987. The Education Officer had, however, communicated that while granting approval to direct recruits, this aspect would be considered if the teachers are having qualification in relevant subject.
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11. While petitioners had been making representations, yet, respondent no. [SECTION] purported to issue an advertisement on 28-02-2002, thereupon, the petitioners had requested the management to consider them for absorption / appointment having regard to acquisition of requisite qualifications by them.
12. Learned counsel further refers to that as respondent no. [SECTION] had not been taking up their legitimate cases for such absorption / appointment, they had been before this Court in Writ Petitions bearing no. 1246 of 2000, 1249 of 2000, 1[SECTION]8[SECTION] of 2003, 1[SECTION]86 of 2003 and 1[SECTION]27 of 2003. Said Writ Petitions were disposed of by the High Court under orders dated 22-04-2003, observing that the Education Officer to take a decision on the representations in accordance with law and on its own merits.
13. It is further submitted that after disposal of aforesaid Writ Petitions, a detailed representation to the Education Officer had been made pointing out the circular and the relevant clauses and referring to the persons, who were appointed by respondent no. [SECTION] from open market. Further grievance is made by petitioners that disappointingly, it has been communicated by the Education Officer that the circular does not specifically mandate that candidates having trained graduate teacher's qualification be appointed from 8 WP - [SECTION]348-2003 such trained graduate teachers working on D.Ed. scale, purporting further to observe that such appointments is the domain of the management and while appointing teachers from eighth to tenth standards, if the Government Order dated 10-07-2001 is not followed, necessary action would be taken while considering approval to such appointments.
14. According to learned counsel, proper appreciation of circular dated 09-07-1987 would reveal that it mandates that vacancies of trained graduate teachers for fifth to seventh standards shall be filled in from the staff working on D.Ed. scale possessing trained graduate teacher's qualification and the same also provides, for eighth to tenth standards, such teachers who are working on D.Ed. scale and have acquired qualification of trained graduate teachers, then, they must be considered. Even in case, if the management desires to appoint teachers for eighth to tenth standards in particular subject, if the trained graduate teacher working in D.Ed. scale is not available to teach that particular subject, then alone the management would be able to have a candidate from outside but that too with prior permission from the Education Officer.
1[SECTION]. It is submitted that while appointing trained teachers referred to in the representation dated 13-0[SECTION]-2003, the 9 WP - [SECTION]348-2003 management had not obtained prior permission of the Education Officer. Learned counsel submits that the authorities are not doing their bit and purport to act perfunctorily, may be, for extraneous considerations, yet in the process, the deserving candidates like the petitioners are met with injustice and are suffering.
16. Learned counsel further submits that quite a few appointments suggest the same having been made for extraneous considerations as persons not having proper qualifications have been appointed, who would not be qualified to teach a particular subject. He purports to refer to a couple of cases in this respect. According to his instructions, one is not qualified to teach Hindi subject whereas the other happens to be a close relative getting inducted under nepotism.
17. Learned counsel for the petitioners refers to and relies on judgment of Supreme Court in the case of [ENTITY] and others Vs. Tukaram Tryambak Chaudhari and others, AIR 2007 SC (Supp.) 66[SECTION]. The Supreme Court in the same, had observed thus :-
" 20. We have carefully considered the submissions made on behalf of the respective parties. Having particular regard to the fact that though standards [SECTION] to 7 were attached to both primary schools as well as secondary schools, these classes in fact, represented the middle schools for which different standards were being followed.
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21. Conscious of such disparity in respect of teachers who are similarly situated but were treated differently on account of their being attached to primary schools and/or secondary schools, the State Government resolved to eliminate such differences and to make provisions for trained graduate teachers to be upgraded to a higher scale to the extent of 2[SECTION]% of the posts. The said Resolution consciously refers to in service graduate primary teachers who were eligible for appointment to the posts in the increased pay-scale. In fact, one of the conditions for appointment of in service graduate primary teachers to the converted post carrying the higher pay- scale was that such teacher should have obtained a degree in Arts or Science and had also obtained a degree in education namely, B.Ed. While adopting the aforesaid Resolution, the Government was, therefore, fully aware of the fact there were graduate teachers teaching in standards [SECTION] to 7 in the primary schools. This fact was also referred to by the Division Bench of the High Court in its judgment under appeal. It has been mentioned that one of the contentions raised on behalf of writ petitioners was that in terms of Government Resolution dated 26th October, 1982, the petitioners were entitled to be appointed and continued as trained teachers in B.Ed. scale.
22. As has been pointed out by Mr. [ENTITY], the said Government Resolution does not appear to have been brought to the notice of the Full Bench which rendered its decision on the reference made to it on the basis of the [ACT] in respect whereof conflicting views had been taken with regard to the eligibility of a graduate, also holding the B.Ed. degree to be appointed in a primary school. The Resolution of 1979 was dealing with a situation which was prior to the enactment of the said Rules and which contemplated the existence and appointment of graduate teachers in primary schools."
18. The background of the case appears to have been referred to in paragraphs 2 and 3, reading thus:-
" 2. The private respondents in all these special leave petitions had filed several writ petitions in the Bombay High Court questioning the decision of the authorities to treat them as Untrained Teachers although they were all graduate teachers having B.Ed. qualification and approval having been granted for their appointment as trained teachers. According to the said respondents, they had all been appointed as Assistant Teachers in Primary Schools which conducted classes up to the 7th 11 WP - [SECTION]348-2003 standard, from about the year 1988 onwards. It is only after a decision was taken to treat them as untrained teachers, despite being fully trained and qualified, that they were compelled to move the several writ petitions which were all allowed by a common judgment of the Bombay High Court dated 6th May, 2004.
3. The case of the writ petitioners before the Bombay High Court was that they were all graduate teachers having B.Ed. qualification and that they had been appointed to teach in Primary Schools conducting classes up to the 7th standard. In most of the cases, approval was granted for their appointment as Trained Teachers. Subsequently, however, in 2001, they were all informed on different dates that they would be treated as untrained teachers and would be paid their salaries accordingly. According to the writ petitioners, in terms of Government Resolution dated 26th October, 1982, they were entitled to be appointed and continued as Trained Teachers in the B.Ed. scale. The respondents in the several writ petitions, who are the appellants before us, had contended before the High Court that B.Ed. qualification was not sufficient for being treated as Trained Teacher in the Primary Schools and that what was required was a D.Ed. qualification. It was contended that before joining the school, the teacher concerned was required to hold the qualification of S.S.C. and D.Ed. and that the teacher was also required to acquire a graduation degree while in service along with a B.Ed. degree."
19. Learned counsel has further referred to a case decided by a Division Bench of this Court reported in 2003 (2) ALL. M.R. 9[SECTION]1. (Kondiba S/o Dattarao Mirashe Vs. [ENTITY] and others)
20. Respondents no.[SECTION] and 6 have filed responses in 2003 and 200[SECTION] while the first was filed under the signature of the chairman of the trust, it has been submitted in the same, the management had issued advertisement inviting applications in August, 2002 for appointments in three subjects, namely, Hindi, [ENTITY] and Physics - Chemistry.
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21. For Hindi subject, applications from two streams were received. Petitioners pursuant to the advertisement, had also applied and the candidates who fared well in the process pursuant to the advertisement were selected on the basis of merit. Accordingly, Smt. [ENTITY] had been appointed on 31-12-2002. It has been specifically referred to that while petitioners had also applied, their candidature was also considered, however, they could not succeed in competition on merit. So, was the case in the case of [ENTITY] wherein Ms. [ENTITY] got selected on the basis of merit. So far as Physics and Chemistry subject is concerned, it has been contended that none of the petitioners holds Bachelors degree in Science and, particularly, in Physics and Chemistry. From the candidates who underwent the process, candidature of Mr. [ENTITY] had been found to be fit and accordingly had been selected.
22. In response, thus, it is contended that the candidature of petitioners in the process of selection of teachers for subjects teaching in eighth to tenth standards, had not been found to be meritorious. The petitioners are not entitled to make any grievance contending that they should have been appointed on the said posts. Management has followed due procedure for making appointments 13 WP - [SECTION]348-2003 of Assistant Teachers and petitioners claim that only them be considered is not tenable and is devoid of any substance.
23. It is further submitted that while the appointments are being made for divisions from eighth to tenth standards, the claim on the basis of Government resolution dated 09-07-1987, is without any substance. Even the Education Officer had given his no- objection to such appointments being made. Education Officer has also granted approval to the appointments made.
24. The respondent - Management further contends that in the face of mandatory provisions of law under The [ACT] (for short "The [ACT]") and the [ACT] (for short "The [ACT]"), the Government resolution which is pressed into service as the basis of the claim of the petitioners cannot be relied upon.
2[SECTION]. It has been referred to that petitioners [ENTITY] and [ENTITY] are not graduates with Hindi, [ENTITY] or Science. Mr. [ENTITY] is B.A. with English and [ENTITY] is B.A. with History. Petitioners 1 and 2, as such, are not qualified to be 14 WP - [SECTION]348-2003 appointed. It is thus contended that petitioners cannot claim pay scale of graduate teachers in 1:3 ratio. Appointments were made for standards eighth to tenth. Even otherwise, according to respondents, the petitioners have filed representations on 0[SECTION]-10-2003 and 17-10-2003. But the appointments were already made in December, 2002. It has further been referred to that all said teachers were appointed as [ENTITY] in a fixed pay scale pursuant to Government resolution dated 21-10-2003. Petitioners were drawing salary in the range of Rs. 10000/- to Rs. 12000/- per month.
26. In response of 2012, filed upon authorization of respondents [SECTION] and 6, it is contended that Writ petition suffers from delay and laches as the petitioners have been working from 1980 to 1992 and grievance is being made by them in 2002.
27. In this response, Circular dated 09-07-1987 - Exhibit "A" to the petition is referred to as letter rather than Government resolution as referred to in the earlier response of 2004. It is submitted that said letter is contrary to the [ACT] and the Rules thereunder. Service conditions of employees are governed solely by the [ACT] and the [ACT] and not by such letter or Circular. Said letter / circular of 1987, is contrary to 1[SECTION] WP - [SECTION]348-2003 provisions of [SECTION] and [SECTION] of the [ACT] as well as [SECTION] of the [ACT]. Teachers are to be appointed possessing qualifications as referred to under [SECTION] to the rules. Government had introduced a scheme of [ENTITY] due to paucity of funds and under the same, every post falling vacant since 2002 was to be filled in pursuant to said scheme. According to the same, advertisements have been given in newspapers and appointments had been made. In the circumstances, only upon acquisition of qualifications, petitioners cannot be appointed on a trained graduate scale.
28. In the response, it is contended that mere improvement in qualification, an employee would not be held entitled to be appointed in 2[SECTION]% posts meant for graduate pay scale. It has been denied in the same that management is interested in appointing candidates from open market contending that management has to appoint candidates according to provisions of the [ACT] and the Rules and pursuant to the [ENTITY] scheme. It is contended that circular dated 09-07-1987 does not have force of law.
29. It is further submitted that if petitioners want B.Ed. scale, then, they would have to compete with other candidates from 16 WP - [SECTION]348-2003 open market. Direct appointment without procedure is not possible in view of [SECTION] of the [ACT].
30. Said response further refers to that petitioners had not been eligible to be appointed on the posts which had fallen vacant pursuant to Government resolution. It is denied that appointments had been made for extraneous consideration as alleged. The respondents refer to a chart annexed stating that none of the petitioners is eligible to the post falling vacant.
31. Respondent no.4 - [ENTITY] in his reply-affidavit, refers to that respondent no.[SECTION] management had been issued instructions to consider requirements under circular dated 09-07-1987. It has been referred to that authority to make appointments and promotions as per provisions of the [ACT] and the [ACT] vests in the School Committee and no grievance can be made against the Education Officer in respect of the same for him not implementing the circular. Respondent - management has been asked to appoint / promote in-service B.Ed. teachers as graduate trained teachers as per qualifications in the subjects. It has been referred to in the same according to [SECTION] of the [ACT] read with schedule 'A', school committee is empowered to appoint teaching staff.
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32. Learned Senior Advocate Mr. [ENTITY] appearing for respondent contends that the petition is wholly misconceived. It is based on friable grounds. Very basis of the petitioners' claim, namely, Circular / letter dated 09-07-1987 could not be taken into account in the peculiar facts and circumstances of the present case. Petitioners do not possess necessary qualifications for appointment in the trained graduates pay scale in 2[SECTION]% category relied on by them pursuant to circular dated 09-07-1987. According to learned counsel, petitioners do not hold educational qualifications to enter into the trained graduate pay scale in the post in which the appointments have been made and which purportedly are cause of action for the petitioners or for that matter, the posts which have been duly filled in with the permission of this Court.
33. Learned Senior Advocate goes on to contend that statutory provisions in the [ACT], particularly [SECTION] and [SECTION] therein and the [ACT], particularly, [SECTION] and [SECTION] govern the field. While the appointments are to be governed according to said provisions the claim for appointments made by petitioners on the basis of so-called circular / Government decision has no legal force nor has any sanctity and is not enforceable. Implementation of such a circular in the face of provisions of law and rules is not only 18 WP - [SECTION]348-2003 not possible under regime of rule but would be patently illegal. He submits that it is not the petitioners' case at all that the appointments being made by the respondents are in contravention of any provision of law or rule.
34. He submits that reliance on decision of the Supreme Court in the case of [ENTITY] (supra) is misplaced, for it was a case relating to primary schools conducting classes upto seventh standard and further the issue with regard to subjectwise appointment for standards eighth to tenth had not been involved in the same at all. As such, no reliance can be placed on the decision wherein such a question had not arisen at all. He submits that 2[SECTION]% reservation for appointments from trained graduates from D.Ed. scale would come into play only if the petitioners would be in a position to show that they hold qualification in the subject in which appointments were being made. Said case is not applicable in the present matter and can hardly be taken recourse to.
3[SECTION]. Learned Senior Advocate further goes on to submit that a Full Bench of this Court in the case of Tanaji Madhukar Barbade V. [ENTITY] and others, 2011(1) All.M.R. 912, on reference has decided as under:-
" 17. Perusal of the above Rule shows that this Rule gives a right to every eligible candidate to apply for any vacancy either for 19 WP - [SECTION]348-2003 teaching or a non-teaching post in a private school. In order to make this right meaningful and effective, a corresponding duty will have to be read in the Management to give wide publicity to the fact that there is a vacancy in that school, so that every candidate who is eligible to apply can come to know of the existence of the vacancy and apply for the post. Without the Management making the existence of vacancy known, the right given by [SECTION] to every eligible candidate to apply will be meaningless. It is further to be seen that many private schools also receive grant-in-aid from the State Government and therefore salaries of the teaching and non- teaching staff in the Schools are paid from the public funds, and therefore considering the provisions of [SECTION] of the [ACT] as the salary of the teaching and non teaching staff is to be paid from the public funds, there would be an obligation on the Management to advertise the vacancy. So far as the vacancies which are reserved for backward class are concerned, there is a specific provision made in [SECTION]. [SECTION] reads as under:
"[SECTION] For the purpose of filling up the vacancies reserved under [SECTION] the Management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the Employment Exchange of the District and to the District Social Welfare Officer (and to the associations or organisations of persons belonging to Backward Classes, by whatever names such associations or organisations are called, and which are recognised by Government for the purposes of this sub-rule) requisitioning the names of qualified personnel, if any, registered with them. If it is not possible to fill in the reserved post from amongst candidates, if any, who have applied in response to the advertisement or whose names are recommended by the Employment Exchange or the District Social Welfare Officer (or such associations or organisations as aforesaid) or if no such names are recommended by the Employment Exchange or the District Social Welfare Officer (or such associations or organisation as aforesaid) within a period of one month the Management may proceed to fill up the reserved post in accordance with the provisions of [SECTION]."
So far as reserved vacancies are concerned, thus, the Management is not only obliged to issue advertisement in at least one newspaper, but has also to notify vacancies to various agencies. In our opinion, therefore, permitting the Management to fill in the post without advertisement, though there is a clear provision made in the Act or the Rules, would be contrary to the 20 WP - [SECTION]348-2003 scheme of the Act and the Rules. In the provision in [SECTION], which we have quoted above, what is provided is preference. Preference does not mean exclusive right of consideration. It means right to be preferred, other thing being equal. The observations made by the Supreme Court in its judgment in the case of ([PRECEDENT] in relation to the provisions of [SECTION] of the [ACT], in our opinion, are relevant.
20. In our opinion, therefore, the questions which have been referred to have to be answered thus,
1. The Government Resolution dated 1[SECTION]th April, 1991 cannot be made applicable to the teaching and non-teaching staff in recognised private schools which are governed by the provisions of the [ACT] framed thereunder;
2. [SECTION] to the [ACT] does not provide for promotion to the post of junior clerk. It merely provides a preference to be given to the lower grade staffs in making appointment to the posts of junior clerk and laboratory assistant.
Order accordingly."
36. He submits that the decision posits that Government resolution / circular will not be able to hold sway over the statutory provisions of the [ACT] and the [ACT] stipulate the manner in which the vacancies are to be filled in.
37. Learned counsel with reference to above also refers to decision in the case of State of Orissa and others Vs. Prasanna Kumar Sahoo, AIR 2007 S.C. 2[SECTION]88. Paragraph no. 14 from the same reads thus :-
" 14. Even a policy decision taken by the State in exercise of its jurisdiction under [SECTION] of the [ACT] would 21 WP - [SECTION]348-2003 be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to [SECTION] of the [ACT]. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions."
38. In addition, referring to the case of [PRECEDENT], he submits that statutory provisions must prevail over executive instructions.
39. The case of [PRECEDENT] is being pressed into service, to impress upon that unless a candidate qualifies the eligibility criteria, his candidature for permanent appointment would not be legitimately considered. He particularly refers to paragraph no. 18 thereunder, reading thus :-
" 18. From above discussion it follows that the government resolutions mentioned above and produced on record by petitioner [ENTITY] and relied upon by all three petitioners cannot modify the legislative mandate. They cannot claim any right to post and reinstatement by virtue thereof. Only concession made in their favour appears to be a separate quota for admission to that course and facility of in-service training. But then due to mandate of [SECTION] of 1977 Act permanent vacancy with institution is liable to be filled in at the earliest by appointing qualified/trained person and by putting him on probation. Such permanent arrangement at the earliest is in the interest of students and ultimately the educational goals of State administration. 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 22 WP - [SECTION]348-2003 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. [SECTION] 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."
40. He further refers to and relies on a decision in the case of [PRECEDENT].
41. The clauses from the circular dated 09-07-1987 as annexed to the petition, which are enumerated as 1 to 4, read thus :-
" . . . . 23 WP - [SECTION]348-2003 . , / / /. - ( ) . , . - .
. . - . . / . . . .
. - . .
. , ."
42. The advertisement, it appears, had been issued in August, 2002 inviting applications for appointments to the posts of 24 WP - [SECTION]348-2003 [ENTITY] by respondents no. [SECTION] and 6 in Secondary school on the two posts falling vacant in the subjects Physics and Chemistry and one in Hindi, respectively. It further appears, petitioners pursuant to the same, had participated in the selection process. Petitioners were not appointed and other persons were selected and appointed as [ENTITY] in the respective subjects.
43. It appears that, in December, 2002, representations were made to Education Officer (Secondary), Zilla Parishad, Ahmednagar seeking B.Ed. scale referring to various dates, as given in the annexure, of acquisition of Graduate training qualification. It has been contended in the representations that petitioners had requested for granting them B.Ed. scale from time to time upon availability of posts to be occupied by employees acquiring B.Ed. training qualification, however, whenever posts had been available, those have been filled up by making appointments of outside people ignoring the Government order dated 19-04-1981. It is further contended that on retirement of some teachers, posts have fallen vacant and were available for employees holding B.Ed. qualification. But the management had advertised the posts, which is a serious matter and, as such, purported to demand justice. It also appears that petitioners' association had also caused correspondence.
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44. A few petitioners had been before this Court by filing writ petitions no. 1[SECTION]8[SECTION] of 2003, 1[SECTION]27 of 2003, 1246 of 2000 and 1249 of 2000 and the Education Officer (Secondary) Zilla Parishad had been directed to consider the claim of teachers and pass appropriate orders with direction to dispose of their representations.
4[SECTION]. Petitioners thereafter had filed representation dated 13-0[SECTION]-2003 that they should be given benefit of clauses under the resolution dated 09-07-1987 and purported to refer to that a similarly situated employee had been given benefit of graduate pay scale since 1987 and such benefit being not offered to petitioners, the same has been causing discrimination which is erroneous and is in violation of [SECTION] of the [ACT]. The Education Officer (Secondary) under communication dated 1[SECTION]-07-2003 had communicated to petitioners that there are no specific directions for granting trained graduate pay scale to persons acquiring qualifications working in the D.Ed. pay scale and that appointments and promotions on the post are domain of the institution.
46. While the facts are considered, there does not appear any dispute about the position that appointments as were sought under the advertisement pursuant to which petitioners appear to have applied for and the posts falling vacant during pendency of the Writ Petition were the posts for teaching eighth standard to tenth 26 WP - [SECTION]348-2003 standard. If that be so, the subjectwise qualification may be necessary to be possessed. It is not a case, in selection process pursuant to the advertisement, the selection is not on the basis of merits and is not following the due procedure as prescribed under the [ACT].
47. All the appointments which have been made during the course of the Writ Petition have been appointments on the post falling vacant during the pendency of Writ Petition.
48. Albeit counsel for petitioners contended that it is only ostensibly the appointments are shown to have been made for eighth to tenth standards, yet, the said teachers are working also on the classes of middle school from fifth to seventh standards. This submission, however, is not being supported by any material worth consideration whereas learned Advocate appearing for respondents have emphatically denied such claim.
49. In the present matter, so far as advertisement of 2002 is concerned, petitioners appear to have participated without protest and after having failed, it may not be legitimate for them to turn around and question the appointments made pursuant to said advertisement. It may be worthwhile to refer to paragraph no. 14 from Ranjan Kumar and others v. State of Bihar and others , (2014) 16 SCC 187 , 27 WP - [SECTION]348-2003 reading thus :-
" 14. The next submission which has been presented before us is that when the respondents had appeared in the interview knowing fully well the process, they could not have resiled later on or taken a somersault saying that the procedure as adopted by the department was vitiated. In this connection, it is apt to refer to the principle stated in [PRECEDENT]. In the said case a three-Judge Bench, taking note of the fact that the petitioner in the writ petition had appeared for the examination without protest and filed the petition only after he realised that he would not succeed in the examination, held that the writ petitioner should not have been granted any relief by the High Court."
[SECTION]0. The position emerges that the posts for which petitioners had participated in the selection process under advertisement, were the posts for specific subjects of Physics and Chemistry and Hindi for secondary school i.e. eighth to tenth standards. This Court under its order, had put a condition that management while making appointments, permission be taken from this Court. Under various orders passed from time to time in the Civil Applications, permission had been given to the management to make appointments subject to decision in the writ petition.
[SECTION]1. So far as the appointments made pursuant to the advertisement of 2002 and subsequent appointments made under permission from this Court are appointments to secondary school in certain subjects. As far as post of English subject is concerned, an 28 WP - [SECTION]348-2003 explanation has come from the management, as to why the concerned petitioners could not be considered. In other subjects, the appointments have been subjectwise in which none of the petitioners is qualified. As such, to a large extent, not only the procedure under the rules has been followed but also largely according to conditions as would be appearing in 1987 Circular relied on, appointments in specific subjects in the secondary schools have been made.
[SECTION]2. The petitioners have not been able to point out a single case wherein for the classes from first to seventh standards, where subjectwise appointments would not be insisted upon, any person has been appointed disregarding the claim of petitioners. The management has referred to various aspects about the working hours, number of students, number of classes etc. Petitioners although have submitted that the persons appointed in secondary school have been performing duties in VII or lower standards, no material has been effectively placed before this Court.
[SECTION]3. As such, in the present writ petition, having regard to emerging position, the request made under the prayer clauses of the writ petitions, seeking appointments along with deemed date from the date of acquiring eligibility to hold the post of trained graduate teachers along with consequential benefits is difficult to be acceded 29 WP - [SECTION]348-2003 to and granted.
[SECTION]4. In the circumstances, it would not be necessary to go into the other aspects as argued in the present matter. The Writ Petition, as such, is dismissed. Rule stands discharged.
[SECTION][SECTION]. Consequently, [CASE NUMBER] filed in this Writ Petition does not survive and stands disposed of.
[[ENTITY]] [[ENTITY]] JUDGE JUDGE arp/