Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO.5953 of 1997 1. Gram Vikas Seva Mandal C/o. Samta Vidyalaya, Post Office Sawkarwadi, Tal. Malegaon, Dist.Nashik. 2. The Chairman, Gram Vikas Seva Mandal, C/o. Samta Vidyalaya, Post: Sawkarwadi, Tal. Malegaon, Dist. Nashik. 3. The Secretary, Gram Vikas Seva Mandal, C/o. Samta Vidyalaya, Post Sawkarwadi, Taluka Malegaon, Dist. Nashik. ...Petitioners V/s. 1. Salunke Madhukar Dayaram R/o. Sawkarwadi, Tal. Malegaon, Dist. Nashik 2. Head Master, Samta Vidyalaya, Post Sawkarwadi, Tal. Malegaon, Dist. Nashik. 3. Suresh Tukaram Pawar, R/o. Chinvhve (Nimbate), Tal. Malegaon, Dist. Nashik. ...Respondents Mr.Dhananjay Holwai iby Mr.M.P.Vashi and ASS Advocate for the Petitioner Mr.Mihir Desai, Advocate for Respondent No.1 CORAM CORAM CORAM : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. : B.H.MARLAPALLE,J. DATED DATED DATED : 24th January, 2008 : 24th January, 2008 : 24th January, 2008 ORAL ORAL ORAL JUDGEMENT JUDGEMENT JUDGEMENT This petition impugns the Judgement and order dated 28-4-1997 rendered by the School Tribunal at Nashik 2 thereby dismissing Appeal No. 30/1994 filed by the Petitioner challenging the alleged oral termination of service as an Assistant Teacher. 2. As per the petitioner he had passed his M.com examination in 1989 and further completed the certificate course of ’Hindi Shikshak Upadhi Pariksha’ from the Mumbai Hindi Vidyapeeth and he had claimed that it was equivalent to the B.Ed degree. As per the appointment order dated 8-6-91 he was appointed as an Assistant Teacher from that date for the academic years 1991-92 and 1992-93. He was allowed to sign the muster on 16-6-1993 but thereafter he was prohibited to do so and from 17-6-93 respondent no.5 Shri Suresh Pawar was appointed as an Assistant Teacher for the academic year 1993-94 as a part time teacher and the said tenure had come to an end on 22-2-1994. He further submitted that he was orally terminated from service w.e.f. 6-7-94 and as he had attained the status of deemed permanent teacher, the said oral termination was illegal and,therefore, his Appeal filed under Section 9 of the MEPS Act, 1977 (the Act for short) was required to be allowed. 3. The management i.e. respondent nos. 1 to 4 filed the written statement and opposed the application. It was pointed out at the first instance that the 3 petitioner did not hold the qualifications of B.Ed and,therefore, was not qualified to be appointed as an Assistant Teacher. It was further submitted that the appellant’s appointment was on purely temporary basis and it had expired by efflux of time at the end of the academic year 1992-93. It was denied that on 16-6-1993 the appellant had signed the muster roll and that from the next day he was stopped from doing so. The management further pointed out that for attaining the status of deemed permanency under Section 5(2) of the Act, the appellant was required to be appointed on probation and by following the regular procedure as envisaged under Section 5(1) of the said Act. The appellant had no claim of reinstatement and his discontinuation and/or non renewal of his appointment did not amount to termination of his service and,therefore, there was no cause of action to file the Appeal. The management also highlighted the issue of delay in filing the appeal. 4. On the issue of delay it is required to be noted that an Appeal under Section 9 is to be filed within 30 days from the date of cause of action and if the School Tribunal is satisfied that there is sufficient reason to entertain the Appeal beyond time, it can do so. In the instant case there was no application filed for condonation of delay though the appeal was filed on or 4 about 6-7-1994. In the appeal memo itself the appellant had clearly stated that from 17-6-1993 he was not allowed to sign the muster roll and more than one year later i.e. on 6-7-1994 5. Surprisingly, the School Tribunal has accepted the oral termination of 6-7-1994 and held that the appeal was in time. The Tribunal noted that the appellant was appointed for 2 years i.e. till the end of academic year 1992-93 but the School Tribunal committed an error in holding that academic year 1992-93 ended in April 1994. The Tribunal accepted the statement of the appellant that he reported on 6-7-1994 and he was prohibited from signing the muster roll. The reasoning given by the School Tribunal in holding that the appeal was in time, is unsustainable and contrary to the case made out by the appellant himself. It was clear from the pleadings of the appellant himself that from 17-6-1993 he was not allowed to sign the muster-roll which clearly indicated that the termination alleged was oral and appeal was filed almost after one year from the same. 6. Be that as it may, the issue of appellant’s eligibility for being appointed as an Assistant Teacher in a Secondary School has also been addressed to by the School Tribunal on totally erroneous basis. The 5 appellant claimed that "Hindi Shikshak Upadhi Pariksha" was equivalent to B.Ed. degree and the Tribunal noted that there was no such GR placed on record and without answering the issue of the petitioner’s eligibility, the Tribunal held that he had worked for 2 academic years, and the management could have given him 2 years time to acquire the qualifications as per the GR dated 20-7-90 rather than removing him from service. In this regard the Tribunal has relied upon the decision of this Court (Division Bench) in the case of Anjuman Faroh-E Taleem, Anjuman Faroh-E Taleem, Anjuman Faroh-E Taleem, V/s. V/s. V/s. Hafizur Rehman Abdul Hamid(1985 I SLR 796). Hafizur Rehman Abdul Hamid(1985 I SLR 796). Hafizur Rehman Abdul Hamid(1985 I SLR 796). In Anjuman Faroh’s case he was appointed as an Assistant Teacher in a primary school on 1-10-1985 when he did not possess the D.Ed qualifications. The termination order was dated 30-3-1990. Attention of this Court was invited to the GR dated 20-7-1990 wherein the primary teachers were given the benefit of postal D.Ed scheme till the year 1994. The said GR clearly applied to the primary teachers who were already in service as permanent untrained teachers and to enable them to acquire the requisite qualifications and this was to be done within a specified period. Such a scheme was not envisaged for the Assistant Teachers in Secondary or Higher Secondary Schools. Hence, the reliance of the School Tribunal on the same decision was totally misplaced. 6 7. The R & P shows that the Education Officer was aware of the appellant’s appointment on temporary basis. It is not known whether this appointment was approved by the Education Officer even for the tenure of two academic years i.e. 1991-92 and 1992-93. However,on 30-4-1993 the Deputy Director of Education,Nashik Region addressed a letter to the Head Master of Samta Vidyalay, Post Sawkarwadi, Tal. Malegaon, Dist.Nashik i.e. Respondent No.4 and informed him that in the place of the appellant - a temporary appointee, a surplus teacher by name Shri S.Pawar was required to be absorbed. Reminders in this regard were sent on 10-5-1993, 10-6-1993 and finally as per the order dated 2-11-1993 the management was fined by 20% deductions from the grants payable to the Society i.e. Gram Vikas Seva Mandal. The record also shows that for the appointment of the appellant from 8-6-1991, the selection procedure was not followed and in any case the petitioner’s appointment was not on probation. Under these circumstances the appellant could not have attained the status of a deemed permanent teacher. The Respondent management in its written statement though had reiterated that the appellant was appointed against the permanent vacant post, it was pointed out that the Education Officer declined to grant approval to his appointment on the ground that he did not possess the B.Ed degree and was not qualified to teach politics 7 subject as he was a graduate as well as post graduate in commerce faculty. This is one more reason to hold that the appellant could not be treated to be the teacher who had attained the deemed permanent status. The impugned Judgement and order was stayed by this Court and consequently the petitioner was not reinstated. Rule 6 read with Schedule B of the MEPS Rules, 1981 deals with the qualifications for trained teachers in secondary schools and junior colleges and the petitioner did not possess the requisite qualifications for his appointment as an Asstt. Teacher in a Secondary School. 8. In the premises this petition succeeds and the same is hereby allowed. The impugned Judgement and order in Appeal No.30/1994 is quashed and set aside. Consequently, Appeal No. 30/1994 stands dismissed. 9. Rule is made absolute in the above premises with no order as to costs. [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.] [B.H.MARLAPALLE,J.]