1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.178 OF 2009 IN WRIT PETITION NO.5556 OF 1999 Shri Shaikh Jamalchand ) Adult, Occupation: Service, ) Residing at Block No.2, ) Room Nos. 12 and 13, ) Keshav Nagar Police Lane, ) Solapur. )..Appellant. v/s. 1) Maharashtra Seva Sangh ) Mashall Vasti, Jaykumar Nagar, ) Vijapur Road, Solapur, ) (through its Secretary) ) ) 2) The Principal ) Shree Nutan Prashala Junior ) College, Mashali Vasti, Jaykumar ) Nagar, Vijapur Road, Solapur. ) ) 3) The Deputy Director of Education, ) Pune Region, Dr.Ambedkar Road, ) Pune-17 )..Respondents. Mr.S.G.Kudle for appellant. Mr.A.H.Palekar, AGP for State. Mr.T.D.Deshmukh for Respondent No.1. CORAM:- SWATANTER KUMAR,CJ. AND A.M.KHANWILKAR, J JUDGMENT RESERVED ON :- JULY 31, 2009. JUDGMENT PRONOUNCED ON :AUGUST 20, 2009 2 JUDGMENT(Per A.M.Khanwilkar,J). 1. This Appeal is directed against the Judgment and Order passed by the learned Single Judge of this Court dated 21st March, 2009 in Writ Petition No.5556 of 1999, whereby the decision of the Presiding Officer, Additional School Tribunal, Pune Region, Solapur dated 8th September, 1999 in Appeal No.70 of 1997 has been set aside. The School Tribunal by the said decision had allowed the Appeal filed by the Appellant under Section 9 of the Maharashtra Employees of Private School (Conditions of Service) Regulation, Act, 1977. The Tribunal accepted the stand of the Appellant that the order impugned in the Appeal resulted in reducing the Appellant from full time teacher to part-time teacher and from part-time teacher to teacher on clock-hour basis. The said order was quashed and set aside being illegal and instead it was ordered that the Appellant be reinstated as full time teacher in Higher Secondary School since 1.4.1994 and that the Appellant would be entitled to get salary as full time teacher from 1st April, 1994 till he is reinstated as a full time teacher. 2. The said decision of the School Tribunal was assailed by the 3 Respondent Management before this Court by way of Writ Petition No.5556 of 1999. As aforesaid, the learned Single Judge allowed the Writ Petition by the Management and in turn was pleased to set aside the decision of the School Tribunal and consequently dismissed the Appeal preferred by the Appellant under Section 9 of the said Act. 3. The learned Single Judge in paragraph-2 of the impugned Judgment has set out all the relevant facts which led to the filing of Appeal by the Appellant before the School Tribunal. We do not wish to burden this order by reiterating the same facts, as the same are not disputed. The first question considered by the learned Single Judge was that whether the Appellant who was admittedly not holding the prescribed qualification provided under Rule 6 read with Schedule B(III) of MEPS Rules, at the time of his appointment on probation for a period of two years in academic years 1992-93 and 1993-94, can claim benefit of deemed permanency, in terms of sub- section(2) of Section 5 of the Act ? The second question considered by the learned Single Judge is: whether the orders appointing and granting approval as a part timer and then on clock hour basis, amounts to “reduction in rank” ? And thirdly, whether the Appeal filed by the Appellant under Section 9 before the School Tribunal was maintainable ? 4 4. The learned Single Judge in the first place analysed the provisions of Section 5 of the Act and following the exposition in the reported decisions concluded that to claim the benefit of deemed permanency, one must be eligible to hold the post. He must be duly qualified as prescribed under Rule 6 r/w Schedule B of MEPS Rules and the post in which he is appointed is permanent vacant post. So far as this principle restated by the learned Single Judge is concerned, the same is unexceptionable. The learned Single Judge then proceeded to examine the efficacy of Rule 6 read with part III of Schedule B of MEPS Rules, which deals with the qualification for teachers in junior colleges. After adverting to the relevant provisions, the learned Single Judge has opined that the said provisions postulate that the full time teachers in junior colleges should possess a Master’s degree of a statutory University in second class in the respective subjects plus B.Ed, or a diploma or certificate in Teaching, approved by the Department. Reference is then made to Clause 1(d) of part III of Schedule B, which contemplates that if persons possessing the requisite qualification are not available, the Director can relax the qualification on the basis of merits of each case and the person in whose favour such relaxation is allowed shall be appointed purely on temporary basis. 5 Besides, reference is also made to first proviso to rule 6 which provides that the Education Officer may allow Management to appoint untrained Science graduate teachers for teaching Mathematics and Science subjects or untrained Arts or Commerce graduates for teaching other subjects in “secondary schools” in exceptional circumstances and such appointments shall, however, be allowed on an year to year basis, on the clear understanding that they shall have to obtain training qualification at their own costs and further subject to condition that their service shall be liable for termination as soon as the trained graduate teachers become available. 5. After having analysed the relevant provisions, which would govern the point in issue and referring to the decisions in the case of Priyadarshini Trust v/s. Ratis Bano 2007(6) Mh.L.J 667 as also Trustees of S.P.R. and ors. Vs. Abdul Kalam & ors. 1999(4) Bom. C.R.104, the learned Single Judge proceeded to conclude that the first proviso to Rule 6 would apply only to persons teaching in secondary schools. For which reason, the same would have no application to the case on hand as the Appellant’s claim was in respect of post of lecturer in a junior college. Even the said conclusion reached by the learned Single Judge is unexceptionable. The learned Single Judge having analysed the relevant position, therefore, found that the 6 Appellant was not entitled to claim benefit of deemed permanency under subsection 2 of section 5 of the Act, in law. The learned Single Judge has discarded the Appellant’s plea that he was assured by the Institution that he would be continued till he acquires the prescribed qualification; on the finding that even if such assurance or undertaking was given by the Institution was of no avail, as the institution could not have continued with such arrangement indefinitely and particularly where trained teacher is available or work load is not available. The learned Single Judge has opined that the Management has denied that in 1995-96 the Appellant was appointed as full timer in a clear permanent vacancy. Once it is found that the Appellant did not possess requisite qualification at the relevant time when he was first appointed, it would necessarily follow in terms of section 5 read with Rule 6 and Schedule B, his appointment could be continued only on temporary basis and the Appellant by no standards can claim benefit of deemed permanency. The view so taken by the learned Single Judge is the correct approach and unexceptionable. 6. The learned Single Judge has then proceeded to examine the second question as to whether orders appointing and granting approval as a part time teacher on clock hour basis would amount to reduction in rank qua the 7 Appellant. The learned Single Judge noted that the Appellant was appointed as full time teacher only for the academic year 1991-92, 1992-93 and 1993-94. Whereafter, he was appointed either as part-timer or on clock-hour basis. The learned Single Judge also found that some divisions in the college were closed, which resulted in reduction of work load. Besides, some teachers who were rendered surplus were directed to be absorbed in the Respondent college in 1995-96. As a result, the Deputy Director of Education could not accord approval to the appointment of the Appellant for the academic year 1997-98 even as part time teacher. Therefore, the Appellant was appointed on clock hour basis in 1996-97. While dealing with this plea in paragraphs-15 and 17, the learned Single Judge has noted that it is clear that after 1994-95 the Appellant was never appointed as full time teacher, in view of the fact that certain divisions were closed and no sufficient workload was available. Moreover, the permanent vacancy on which the Appellant was appointed as a full time teacher was not available in 1994-95. The Appellant was appointed only as part time teacher and in 1996-97 on clock hour basis. This, in the opinion of the learned Single Judge, cannot be treated as reduction in rank. On this reasoning, the learned Single Judge opined that remedy of appeal under section 9 of the Act was not available to the Appellant. We will for the time 8 being assume that the Appellant had legitimate remedy of appeal under section 9 of the Act. The moot question is: whether the Appellant can claim the benefit of deemed permanency in the fact situation of the present case. The learned Single Judge after adverting to the factual matrix of the case has unhesitatingly opined that the Appellant was appointed as full time teacher against the permanent vacancy. But, at the relevant time, he did not possess the requisite qualification and that when he acquired qualification in August, 1995, the permanent vacancy in which he was working earlier was unavailable. It is on this factual matrix, the learned Single Judge found that it was not open to the Appellant to claim benefit of deemed permanency under section 5(2) of the Act. The view so taken by the learned Single Judge, in our opinion, is unexceptionable. In that, if the Appellant did not possess requisite qualification at the relevant time, the question of appointing him on permanent basis would not arise at all. Inasmuch as, on conjoint reading of Section 5(2) of the Act read with Rule 6 and Schedule B, it necessarily follows that only qualified person can be appointed on permanent basis against a permanent vacancy. In Priyadarshini Education Trust(Supra), the Division Bench of this Court has held that in order to claim benefit of deemed permanency, a teacher must be duly selected, is appointed in clear permanent vacancy, his appointment must not be for a 9 fixed/limited period and preferably it ought to indicate that the appointment is on probation. Only on complying with these conditions, a teacher can claim benefit of deemed permanency. We see no reason to depart from the findings recorded by the learned Single Judge that the day on which the Appellant was appointed against a permanent vacancy he did not possess necessary qualification. Moreover, when the Appellant acquired prescribed qualification in August, 1995, however, by that time, the permanent vacancy was unavailable. In this view of the matter, in our opinion, no interference with the conclusion reached by the learned Single Judge is warranted in the fact situation of the present case. 7. We are therefore, in agreement with the learned Single Judge that the School Tribunal has clearly misapplied and misconstrued the provisions of the Act and the Rules overlooking the settled legal position. The grievance of the Appellant regarding finding recorded by the learned Single Judge that the School Tribunal has had no jurisdiction to entertain the appeal preferred by the Appellant, in our opinion, is of no avail. The fact that the plea of jurisdiction was not raised before the Tribunal cannot invest jurisdiction in it which it did not possess. The stand of the Appellant that the School Tribunal had jurisdiction because the Appellant was appointed as 10 full time teacher and was continued as such till academic year 1994-95 and would therefore, acquire status of deemed permanent on account of having acquired qualification during academic year 1995-96 and for that reason, the order impugned in the appeal was in the nature of reduction of rank, is founded on an erroneous premiss. Inasmuch as, the learned Single Judge has rightly noted that although the original appointment of the Appellant was against the post of full time teacher in 1991-92 and continued as such till 1993-94 but for the subsequent academic years, he was appointed only as a part time teacher and later on, on clock hour basis in the changed situation. When the Appellant was initially appointed in 1991-92 against the post of full time teacher, which was a permanent vacancy, the Appellant did not possess requisite qualification. The Appellant acquired that qualification only in August, 1995, but by then the permanent vacancy of the post of full time teacher was not available during the academic year 1994-95. Therefore, the question of continuing the appellant as full time teacher for the academic year 1994-95 did not arise and in any case the Appellant could not have claimed benefit of deemed permanency under section 5(2) of the Act. As such the challenge by the Appellant before the School Tribunal in relation to his appointment on clock hour basis in the academic year 1997-98 was misdirected. 11 8. According to the Appellant, the learned Single Judge has glossed over the undertaking given by the Institution before the Education Department. Insofar as this grievance is concerned, it clearly overlooks the view taken by the learned Single Judge that assurance given by the Institution cannot be the basis to decide the matter in issue. That has to be decided on the facts emerging from the record and applying the provisions of law. That is the correct approach in deciding the controversy. The Appellant would then contend that the learned Single Judge has not adverted to the Government Resolution issued by the Government, which fully protects the appointment of untrained teachers in junior college in question. Even this argument does not commend to us. The Government Resolution pressed into service will be of no avail having regard to the statutory Rules in place. Besides, we are at a loss to understand how the Government Resolution (Exh.E at page 76) placed on record would be of any avail to the Appellant. For, that deals with the question raised on behalf of the part time junior college teachers for the revision of their remuneration on the basis of their pay-scale of part time lecturers in senior colleges in accordance with Bhole Commission report. We are also not impressed with the ground that the college was obliged to maintain common seniority of teachers working in secondary 12 school and higher secondary school. The moot question in the present case was about the status of the Appellant. In that, whether he was appointed against the permanent vacancy and was duly qualified at the relevant time when appointed. That has been answered against the Appellant. That finding, we have already observed, are unexceptionable. 9. Accordingly, we find no merits in this Appeal. The same is dismissed. CHIEF JUSTICE A.M.KHANWILKAR, J