1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1975 OF 2006 Lions Club, Akkalkot & Anr. .. Petitioners Vs. State of Maharashtra & Ors. .. Respondents WITH WRIT PETITION NO.3674 OF 2004 Smt.Dhanamma Shantappa Tirgule .. Petitioner Vs. The Administrative Officer, Municipal School Board, Akkalkot & Ors. .. Respondents Mr.G.S. Godbole for the petitioner in Writ Petition No.1975 of 2006 and respondent nos.4 and 5 in Writ Petition No.3674 of 2004 Mr.S.G. Kundale for the petitioner in Writ Petition No.3674 of 2004 and respondent nos.4 in Writ Petition No.1975 of 2006 Mr.Vijay Killedar i/b Mr.Nitin Jamdar for respondent nos.2 in Writ Petition No.1975 of 2006 and respondent nos.3 in Writ Petition No.3674 of 2006 Mr.C.R. Sonawane, A.G.P. for the State CORAM : J. N. Patel & Smt. Mridula Bhatkar, JJ DATE : July 2, 2009 2 ORAL JUDGMENT (PER J.N.PATEL, J) : 1. Heard the learned counsel for the parties. 2. Rule in Writ Petition No.1975 of 2006. Rule made returnable forthwith. 3. Writ Petition No.1975 of 2006 has been filed by the Petitioner Management i.e. Lions Club, Akkalkot who are seeking a writ in the nature of order and direction against the respondent nos.1 to forthwith withdraw and/or cancel the impugned order dated 6.1.2004 being Exhibit M to the petition. So also to ‘ ’ withdraw and cancel the impugned letter/communication dated 21.2.2006 being Exhibit SS to this Writ Petition and for other ancillary reliefs which flow ‘ ’ from the impugned order Exhibit M whereas Writ Petition No.3674 of 2004 is ‘ ’ filed by respondent nos.4 wherein she has sought a writ in the nature of mandamus directing the respondents i.e. the petitioner management in the earlier petition to regularize the petitioner s services as an Assistant Teacher in ’ the Primary School viz. Lions Prathamic Shala, Akkalkot and for granting her regular and permanent approval with retrospective effect from 1.1.1998, holding that petitioner is entitled and eligible to continue as an Assistant Teacher in the Respondent Nos.4 Primary School by virtue of Government Order dated 6th January, 2004 issued by the Desk Officer of the School Education Department of the respondent State and for other ancillary reliefs in the matter. 4. The facts which led to the filing of these two petitions are that Lions Club, 3 Akkalkot opened a Primary School at Akkalkot in the year 1971 which is a Marathi Medium School duly recognized by the respondent State and receiving full Grant In Aid. The sanctioned strength of the Teachers in the School is 9 including the Headmistress. 5. It is the case of the petitioner that after coming into force of the Maharashtra Employees Private Schools (Conditions of Service) Act, 1977 and Maharashtra Employees of Private School (Conditions of Service) Regulation Rules 1981, the School is governed by the provisions of the said Act and the Rules. In addition to the Primary School, Lions Club also runs a Lions Montessori Training Centre which does not require any recognition and does not get any Grant in Aid. After the M.E.P.S. Act, 1977 came into force, the recruitment and conditions of service of the employees of the private schools in the State came to be governed by the said Act, 1977 and Rules, 1981. Section 4 (1) of the said Act, 1977 empowers the State Government to make Rules providing for the minimum qualification for recruitment and other conditions of service and there is no Section in the entire Act giving power to the State Government to give relaxation either to any School generally or to a class of school or to a person or to a class of persons under the provisions of the said Act or Rules to be framed thereunder. U/s 16(4) it is necessary that every Rule made in the Act should be laid up each house of the State Legislature. Further the M.E.P..S Rules, 1981 came to be enacted in the year 1981 and Rule 2(j) r/w Rule 6 and Schedule B of the said Rules describes minimum educational qualification required for appointment as a Primary Teacher in any school. It 4 also does not confer or authorize the Government to relax the qualifications in respect of any particular person. The only provision which vest power in the State of relaxation from educational qualifications has to be found from the Rules and the said powers are provided in the proviso No.1 and 2 of Rule 6 of the M.E.P.S. Rules, 1981. 6. It is the case of the petitioner Management that respondent nos.4 who is the petitioner teacher in the connected petition though did not have the requisite educational qualification for being appointed as an Assistant Teacher in the Lions Primary School of the Petitioner No.1, as she has passed D.Ed. from Kannad Medium was appointed on ad­hoc basis for a temporary period on leave vacancy. In so far as the appointment of respondent nos.4 teacher being temporary, procedure prescribed by Rule 9 was not followed and the said posts in the petitioner no.2 School was filled up and there was no vacancy and the appointment of respondent nos.4 was thus, only an ad hoc appointment made purely on temporary basis. 7. It is contended that the respondent nos.4 teacher was infact working in the Montessori Training Centre of the petitioner no.1 and the temporary appointment came to an end by the efflux of time i.e. at the end. It appears that for the subsequent years also respondent nos.4 was appointed. She was given fresh appointment as a temporary teacher and at no point of time, any approval was sought or granted to the appointment of the respondent nos.4 nor any such approval could have been granted. In support of their 5 contention, the petitioner management has placed on record copy of the order of Appointment dated 1.6.1995 as Exhibit A and it is contended that ‘ ’ respondent nos.4 was paid salary right from the beginning i.e. from the Lions Montessori Training Centre. It appears that the petitioners continued the appointment of respondent nos.4 by giving her letters of appointment on temporary basis for a period from 1.6.1996 till 30.4.1997 and further from 2.7.1997 till 30.4.1998. Respondent nos.3 granted approval to the temporary appointment of respondent nos.4 only for a period of four months from 1.1.1998 to 30.4.1998 subject to filling up backlog which is annexed at Exhibit D to the petition. ‘ ’ 8. It is the case of the petitioner institution that on 29.7.2002, the Chairman of the petitioner no.1 gave a letter in favour of respondent nos.4 addressed to respondent nos.3 that an approval should be sought from the State Government as a special case for the appointment of respondent nos.4. This was without the petitioner institution having passed any resolution in this regard. Therefore, according to the petitioners, the Chairman has acted in its own discretion without any authority by issuing a letter to respondent nos.3 seeking approval in respect of appointment of respondent nos.4 as a special case. 9. It appears that the respondent continued to work in the petitioner institution on temporary basis against a leave vacancy. It is on 6.10.03 that the respondent nos.1 sent a letter to respondent nos.3 and called for a report from 6 respondent nos.3 regarding the appointment of the respondent nos.4 for being granted approval to be appointed as an Assistant Teacher as a special case and as the vacancy arose in the petitioner nos.2 School, respondent nos.3 directed petitioner nos.2 to fill up the said vacancy by appointing a Shikshan Sevak and by following roster. 10. According to the petitioner, with a view to favour respondent nos.4, respondent nos.3 submitted a proposal for granting approval to appoint the respondent nos.4 as an Assistant Teacher as a special case on 18.12.03. Simultaneously, the totally conflicting order in the form of report to the Desk Officer was forwarded thereby stating that respondent nos.4 cannot be appointed as a special case by the Administrative Officer i.e. respondent nos.3. Therefore, it is the grievance of the petitioners that respondent nos.4 got appointment without the recognition of the petitioners and respondent nos.1 passed an order on 6.1.04 which is annexed at Exhibit M granting approval for the ‘ ’ appointment of respondent nos.4 in the petitioner nos.2 School as an Assistant Teacher as a special case. Armed with the said communication, on 7.1.04 respondent nos.4 teacher submitted a representation to the Chairman of the petitioner and requested that she may be appointed as an Assistant Teacher in a regular course. On 28.1.04, respondent nos.3 again pointed out to the State Government by sending a report that all the nine posts in the petitioner nos.2 School had been filled up and hence, it was not possible to grant approval to the respondent nos.4 in aided school but if the State Government so desires, the approval can be granted to the respondent nos.4 as a Shikshan Sevak. 7 Similar representation was sent on 26.2.04 by the petitioner institution to the Dy.Director of Education, Pune Division, Pune wherein it was pointed out that there was absolutely no vacancy and that after filling up the vacancy according to Roster, the application of the respondent nos.4 was received. In response to the said correspondence, respondent nos.3 sent a reply to the representation of the respondent nos.4 and pointed out that respondent nos.3 does not have any authority to make any appointment and it was the prerogative of the management which led to the filing of Writ Petition No.3674 of 2004 by respondent nos.4 seeking a direction that a permanent approval should be granted to the respondent nos.4 as an Assistant Teacher w.e.f. 1.1.1998 and that the order dated 6.1.2004 passed by the State Government should be implemented. 11. It appears that on 30.4.2004, Writ Petition No.3674 of 2004 was taken up by this court and by ad interim order, the respondent institution was directed that the services of the petitioner will not be terminated in the meanwhile. The petitioner management in compliance with the interim order passed by this court issued a fresh order of appointment to the respondent nos.4 for a temporary period from 31.5.2004 to 30.4.2005 on a temporary basis and since then she is continued in employment. 12. The Writ Petition No.3674 of 2004 filed by respondent nos.4 teacher being prior in time, the management challenged the approval granted in favour of the teacher by filing Writ Petition No.1975 of 2006 and for the said reasons, both 8 the petitions were taken up together and heard. 13. During the course of hearing, this court called upon the learned A.G.P. to place before the court affidavit of respondent nos.3 justifying the approval granted for appointment of Smt. Dhanamma Shantappa Tirgule in Writ Petition No.3674 of 2004 in the institution run by Lions Club, Akkalkot on the basis of justification qualified as a special case which is per se contrary to Rule 6 of “ ” the M.E.P.S. Rules 1981. The learned A.G.P. sought time in the matter and today when the petitions came up for hearing, has placed before the court a communication received from the School Education and Sports Department, Mantralaya Extn. Building, Mumbai addressed to the Deputy Director of Eduction, Pune within whose Jurisdiction Lions Club, Akkalkot, Solapur has run the institution. The said communication is taken on record and marked X ‘ ’ for identification. 14. On going through the said communication, the issues raised by the petitioner teacher in Writ Petition No.3674 of 2004 and by Lions Club, Akkalkot, District, Solapur and another in Writ Petition No.1975 of 2006 stand resolved as the Education Department of the State Government has not taken a conscience decision that Smt.Dhanamma Shantappa Tirgule ought not to have been given approval as a special case as she did not have the necessary educational “ ” qualification for being appointed to the post of Assistant Teacher, as she has done her S.S.C. through Kannad Medium + D.ED through Kannad Medium in which one of the subject was Marathi and, therefore, she could not be 9 appointed in a Marathi Medium Primary School as a primary teacher and that it was contrary to the M.E.P.S. Rules and, therefore, there was an error on the part of the Education Department in granting her approval. Hence, it was clarified that the impugned order dated 28.8.01 being erroneous, the approval granted in favour of Smt.Dhanamma Shantappa Tirgule stands cancelled w.e.f. 17.6.2009. 15. The only issue which remains to be adjudicated is as to who is liable to pay the salary of Smt.Tirgule for the period the State Government granted her approval for being appointed as a primary teacher in Marathi Medium Primary School run by Lions Club, Akkalkot, Solapur as a necessary corollary to the decision taken by the State Government. 16. It is the Education Department of the State Government which will have to bear the expenses towards the salary and other benefits to which Smt.Tirgule could be entitled from the time she has been granted approval under the impugned order dt. 28.8.01 till 17.6.09. Not only this, the management at Lions Club, Akkalkot which is running the Marathi Medium School would be also entitled to reimbursement of the salary of Shikshan Sevak / Primary Teacher appointed by them during the same period as the approval granted to Smt. Tirgule was found to be erroneous for which the management cannot be held responsible. As a result of this, we dismiss the petition filed by Smt.Dhanamma Shantappa Tirgule i.e. Writ Petition No.3674 of 2004 and allow the petition filed by Lions Club, Akkalkot, i.e. Writ Petition No.1975 of 2006 by 10 making the rule absolute in terms of prayer clause (b), (c) and (d). No order as to costs. 17. The learned counsel for the petitioner teacher in Writ Petition No.3674 of 2004 submits that the petitioner may be granted stay to the order passed by this court dismissing the petition. We make it clear that having dismissed the petition, the prayer for grant of stay of the order of dismissal cannot be stayed as it will also have financial implications. It will be open for the petitioner to take appropriate steps in the matter in accordance with law. ( J. N. Patel, J) (Smt.Mridula Bhatkar, J)