1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1559 OF 2009 Rayat Shikshan Sanstha & Anr. ...Petitioners vs. Smt.Patil Malti Janardan & Ors. ...Respondents Mr.Milind Deshmukh for the Petitioners. Mrs.Anita A. Agarwal for Respondent No.1. CORAM : V.M. KANADE, J. DATED : MAY 6, 2009 P.C.:- 1 Heard. 2 The petitioner no.1 is a society registered under the Societies Registration Act, 1860 and also under the Bombay Public Trust Act, 1950 and is an institution which runs and manages several educational institutions including the Junior College (D.Ed. College) at Pirkon, Post Aware, Taluka Uran, Distict Raigad. The said college does not receive any aid from the State of Maharashtra. The petitioner by this petition which is filed under Articles 226 and 227 of the Constitution of India is 2 challenging judgment and order passed by the Presiding Officer, School Tribunal, Pune, in Appeal No.56/2006. By the said judgment and order dated 16.1.2008, the School Tribunal was pleased to allow the appeal filed by the respondent no.1 herein and directed the petitioner herein to permit the respondent no.1 to join the petitioner no.2 college with continuity in service with further direction to pay her salary as per the approved pay scale. Brief facts in a nutshell are as under :- 3 The respondent no.1 was appointed as a Assistant Teacher by the petitioners on 25.8.94 and thereafter, the petitioners issued fresh letters of appointment every year and have paid her consolidated salary at the rate of Rs.1000/- per month upto 1996-97, thereafter Rs.2,200/- for the year 1997-98 and from 1998-99 to 2002-2003 at the rate of Rs.2,900/- per month and from 2003 to 2005, it is Rs.4,500/-- per month. The respondent no.1 3 received a letter dated 31.8.2003 from the Secretary of the petitioner no.1 institution stating therein that as per the norms of N.C.T.E. Act, 1993, the appellant was required to obtain certain educational and professional qualifications at her own cost before June 2007. A reminder letter was sent to the respondent no.1 dated 13.6.2004 in which it was pointed out that the respondent no.1 had not submitted necessary documents in respect of her educational qualification and she was asked to submit the same immediately. The respondent no.1 gave a reply dated 15.7.2007. The respondent no.1 was not permitted to sign the muster roll from 3.8.2005. Respondent No.1 also received a letter dated 1.9.2005 informing her that as per the norms of qualifications laid down by N.C.T.E., Bhopal, respondent no.1 not being qualified, the State authorities had refused approval in respect of the appellant and respondent no.4 was appointed as qualified person in her place. Being aggrieved of the termination of her services by the petitioner 4 nos.1 and 2, she filed appeal before the School Tribunal under Section 9 of the MEPS Act. The petitioners filed their written statement before the School Tribunal in which it was stated that as per N.C.T.E. norms, the respondent did not possess the necessary qualifications. It was stated that as per the norms, it was necessary that she should have secured atleast 55% marks but she had in fact secured pass class and that it was stated that she had not acquired the necessary qualifications within two years from 22.2.2007. It was stated, therefore, that the respondent did not have any right to remain in service. Rest of the averments made in the appeal memo were denied. The School Tribunal observed that the resolution which was issued by the State Government dated 3.4.2003 could not be applied retrospectively since the respondent no.1 has been appointed on a clear and permanent vacancy in 1994. The School Tribunal held that as on the date of her initial appointment, the respondent no.1 had the necessary qualifications and at no time till 2004, 5 the Education Department had raised any objection about the qualification. It was for the first time in 2004-2005, this issue had been raised without affording the respondent no.1 any opportunity of giving her explanation to the allegation made by the Education Officer. The School Tribunal, therefore, allowed the appeal and directed that the respondent no.1 should be reinstated in service. 4 Shri Deshmukh, learned Counsel for the petitioner submitted that the respondent no.1 did not have necessary qualifications as laid down by the N.C.T.E. Act and as per the Government Resolution which was issued pursuant to the said norms which were laid down by the National Counsel for Teacher Education. He invited my attention to the said resolution and submitted that the School Tribunal had not taken into consideration the N.C.T.E. norms which were binding on the State Government and the Government Resolution dated 3.4.2003. He submitted that since the respondent no. 6 1 did not fulfill the eligibility criteria, the management had no other option but to terminate her services as otherwise the recognition which was granted by the Government to the petitioner institution would have been canceled. He submitted that two years time was given to the respondent no.1 to acquire the additional qualification, she had failed to acquire the same and therefore, she had no right to remain in service. 5 The submission made by the learned Counsel for the petitioner cannot be accepted. It is an admitted position that in the year 1994 when the appointment of the respondent no.1 was made, the necessary educational qualification which was required for appointment as Assistant Teacher in the Junior College was a graduation degree with B.Ed (physical) as prescribed in Schedule B to the MEPS Act. It is an admitted position that the respondent no.1 is a B.A. and B.Ed in physical Education and as such possessed necessary educational qualifications 7 for being appointed as an Assistant Teacher in B.Ed college. It is not disputed that prior to the appointment of respondent no.1, one Smt.A.N. Thakur was working in the said post as a permanent teacher. She, however, left the job since the institution was un-aided and was absorbed in one of the aided secondary schools of the petitioner no.1 institution. It is also not disputed that in the year 1992, the petitioner no.1 institution had published an advertisement inviting applications for various posts for its various educational institutions including one post of Assistant Teacher in its junior college for Marathi and Physical Education subjects. The respondent no.1 had applied for the said post and the petitioner no.1 institution had called her for interview by letter dated 20.6.1993. After the respondent no.1 had given the interview, the petitioner no.1 issued a letter of appointment dated 19.8.94. Thereafter, however, the institution issued fresh letter of appointment stating therein that the respondent no.1 was 8 appointed on a probation for a period of two years. In my view, the Tribunal was justified, in view of these facts, in coming to the conclusion that the post on which the respondent no.1 was appointed was a clear and permanent post and that she had been appointed after completing procedure laid down for appointment in a clear and permanent post. The Tribunal, therefore, held that it was not open for the management later on to issue a fresh letter of appointment after a lapse of six years and by the said appointment letter, the teacher was appointed as a probationer. In my view, the Tribunal was justified, therefore, in recording the finding that the respondent no.1 was appointed in clear and permanent post on 19.8.1994. 6 The second contention of Shri Deshmukh, learned Counsel for the petitioner also cannot be accepted. Once it is held that the respondent no.1 was appointed on clear and permanent post in 1994 itself on which date admittedly she had the 9 necessary educational qualification, any subsequent change in the eligibility criteria cannot be made applicable retrospectively to the teachers who are already appointed and are made permanent. The Tribunal, therefore, was justified in holding that the resolution dated 3.4.2003 could not be applied to this present case. 7 The MEPS Act lays down the conditions of service of teachers. Prior to the said Act coming into force, the conditions of service were laid down under the School Code. It was noticed by the government that the management used to exploit teachers by not paying them adequate salary and by not giving them benefits of permanent employment. Under these circumstances, the MEPS Act was passed and the conditions of service of teachers were elaborately dealt with and laid down in the said Act. It is unfortunate that even though the said Act was passed in the year 1977, the management continued to exploit teachers in one way or the 10 other by not giving them salary as per the prescribed pay scales laid down under the Act and by treating them as temporary employees in order to deprive them of all the benefits of permanent service. The facts of the present case clearly show that though the respondent no.1 was appointed on a clear and permanent post in the year 1994 itself, she was not paid salary as per the prescribed pay scale and she was initially given consolidated pay of Rs.1000/- per month and thereafter, Rs.2900/- and lastly Rs.4500/- before she was terminated. Under these circumstances, therefore, in my view, no case is made out by the petitioners for interfering with the judgment and order passed by the School Tribunal while exercising writ jurisdiction of this Court under Articles 26 and 227 of the Constitution of India. 8 Writ Petition is, accordingly, dismissed. (V.M. KANADE, J.)