1 1717.97 SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1717 OF 1997 Ibrahim Ismail Tadkal, adult, Occ.at present nil, residing at 652, Sakharpeth, Solapur. ...Petitioner Versus 1.Education Officer (Primary) Zilla Parishad, Solapur. 2.Director of Education, Maharashtra State, Pune. 3.The State of Maharashtra. 4.The Headmaster, Panchsheel Prathamik Marathi Vidyalaya, Bharat Ratna Dr.Ambedkar Nagar, Majrewadi, Solapur. ...Respondents ...... Mr.Mihir Desai for Petitioner. Mr.Nitin Jamdar for Respondent No.1. Mr.V.S.Gokhale, A.G.P. for Respondent Nos.2 & 3. ...... CORAM:- A.M.KHANWILKAR AND R.Y.GANOO, JJ. DATED:- JUNE 9, 2011. 2 1717.97 JUDGMENT (Per Khanwilkar, J.) : 1. By this Writ Petition under Article 226 of the Constitution of India, the petitioner primarily assails the order passed by the Education Officer (Primary), Zilla Parishad, Solapur, bearing No.ZPSO/Education/Private Primary School, Audit-5/1185, Solapur dated 23rd November, 1994. By the said common order, the proposal regarding grant of approval to the appointment of the petitioner as Drawing Teacher in the respondent No.4 School came to be rejected by the respondent No.1 on the sole ground that the petitioner was an untrained teacher. This is the limited controversy to be dealt with in the present Petition. We may note that the relief claimed in this Petition has been confined to issuance of direction to the respondents to pay the salary and other emoluments payable to the petitioner for the period between 8th June, 1994 till 29th April, 1995. In other words, no relief of reinstatement has been prayed in this Petition which was filed as back as in 1997 after the order of termination dated 29th April, 1995. This position is fairly accepted by the Counsel appearing for the petitioner across the Bar at the time of hearing. 3 1717.97 2. It is common ground that at the relevant time when the petitioner was appointed in the respondent No.5 School on 8th June, 1994, he possessed Art Teachers Diploma, which qualified him to teach subject Drawing in a Primary School. Whether the petitioner can be, therefore, considered as trained or untrained teacher, will have to be examined in the context of the provisions in the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Rule 2(k) defines the term “trained teacher”. It reads thus: “2. Definitions – (1) In these rules, unless the context otherwise requires, (a) to (j) ...... (k) “trained teacher” means a teacher who has secured a professional certificate, a diploma or a degree recognised by the Department which qualifies him for a teaching post in a school.” The expression “teaching post in a school” has not been defined. Going by the plain meaning of the above provision, it would mean that a teacher who possesses requisite qualification, may qualify himself/herself for the post of teacher in a school. Be it for a general subject or a special subject (to wit, arts, drawing, etc.). Further, it is beyond the pale of doubt that drawing is one of the compulsory subject in primary school. A teacher who possesses specified qualification will be competent to impart 4 1717.97 knowledge in the given subject. Suffice it to observe that the definition of “trained teacher” is wide enough to encompass such teachers who possess the specified qualification. 3. The qualification of primary teachers is specified in Schedule `B’ to the Rules. Insofar as Drawing teacher is concerned, clause I.2 provides as under: “I. Qualification for Primary Teachers : ................................................ 2. Appointment to the post of Special Teacher (Drawing Teacher) in Primary Schools shall be made by nomination from amongst candidates who have passed S.S.C. Examination and possess Art Teachers Diploma or Drawing Teachers Certificate or Drawing Masters Certificate.” 4. Considering the fact that the petitioner possessed Art Teachers Diploma, before he was appointed in a permanent post of the Drawing Teacher of respondent No.4 School on 8th June, 1994 after following necessary procedure, by no stretch of imagination, it can be said that the petitioner was an untrained teacher. As that is the sole reason stated in the decision of the Education Officer dated 23rd November, 1994 qua the proposal of the petitioner, the same cannot stand the test of judicial scrutiny. Accordingly, the same is set-aside. 5 1717.97 5. We would, however, hasten to add that reversal of the above said finding recorded by the Education Officer, does not necessarily mean that the proposal of the petitioner deserves acceptance, per se. Inasmuch as, besides that question of fact, it would be legitimate for the Education Officer to also consider whether at the relevant time in June, 1994 there was sufficient workload for the post of Drawing Teacher in the respondent No.4 School. In the event, the Education Officer were to find that there was no sufficient workload for a Drawing Teacher during the relevant period, in that case also, the Education Officer would be competent to refuse approval to the appointment of the petitioner as Drawing Teacher in the respondent No.4 School. We, therefore, leave that question open to be considered by the Education Officer on its own merits. 6. At the same time, we have no hesitation in accepting the argument of the petitioner that irrespective of the fact whether the Education Officer grants approval to the appointment of the petitioner on the post of Drawing Teacher, the respondent No.4 Management having appointed the petitioner as Drawing Teacher by following prescribed procedure and the petitioner having served the respondent No.4 School from 8th June, 1994 till he was terminated on 29th April, 1995, the Management is obliged to pay the salary 6 1717.97 and other emoluments payable to the Drawing Teacher during such period to the petitioner. In other words, even if the Education Officer were to refuse approval, that would not extricate the Management of its obligation to pay the amount towards salary and other perks to the person who was employed by the Management in anticipation of approval to be granted by the Education Officer and who in turn, had served the Management during the relevant period. That is well established position in law. 7. Accordingly, we dispose of this Petition on the following terms: (1)The impugned order passed by the respondent No.1 dated 23rd November, 1994 is set-aside to the extent of petitioner before us, namely, Ibrahim Ismail Tadkal. Instead, we hold that since the petitioner, when appointed as Drawing Teacher on 8th June, 1994, in respondent No.4 School, possessed Art Teachers Diploma was qualified to teach Drawing subject in the Primary School and fulfilled the definition of trained teacher within the meaning of Rule 2(k) read with Clause I.2 in Schedule `B’ of the Rules. (2)Upon setting aside the order passed by the Education Officer, the proposal of the petitioner would stand relegated before the Education 7 1717.97 Officer for reconsideration thereof on other aspects germane for grant or non-grant of approval to the appointment of drawing teacher made by the Respondent No.4 School. Needless to observe that the Education Officer shall give fair opportunity to all concerned before taking final decision on the said proposal. (3)Further, irrespective of the outcome of the decision of the Education Officer, the Management of Panchsheel Prathamik Marathi Vidyalaya, Solapur shall take steps to pay the amount towards salary and other emoluments, if any, to the petitioner for the period during which he served the institution between 8th June, 1994 till 29th April, 1995. Amount so payable shall be offered to the petitioner by the Management of the School not later than eight weeks from the receipt of copy of this order from the petitioner or the Registry of this Court, whichever is earlier. (4)In addition, the Management of the School shall pay interest on such amount at the rate of 8% per annum for the relevant period to the petitioner. 8 1717.97 8. Petition disposed of on the above terms. (R.Y.GANOO, J.) (A.M.KHANWILKAR, J.)