WP/3240/1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3240 OF 1999 The Secretary Bharatratna Dr.Babasaheb Ambedkar Prabhodhan Manch, Solapur & anr. ... Petitioners V/s. Abasaheb Jivappa Gaikwad & Ors. ... Respondents Mr.S.G. Kudle for Petitioners Mr.A.A. Kulkarni for Respondent No.1 Mr.S.N. Bhosale, AGP, Resp. Nos.2 & 3 CORAM: SMT.NISHITA MHATRE, J. DATED: OCTOBER 22, 2010 ORAL JUDGMENT: 1. The Petitioner has approached this Court against the order of the School Tribunal dated 26.4.1999. By the impugned order, the appeal filed by the respondent No.1 has been allowed. The Tribunal has held that his services had been illegal terminated. It has, therefore, granted reinstatement with full backwages to respondent No.1. 2. Respondent No.1 was appointed on 1.6.1994 with the petitioners' primary school which is an Ashramshala. He was appointed as he was qualified with B.P.Ed. Degree. As the appointment was made against a post reserved for a candidate belonging to the Scheduled Tribes, he was appointed on a year to year basis. No approval was granted for his permanent appointment. An order of termination of the WP/3240/1999 : 2 : services of Respondent No.1 was issued on 31.3.1997 by the petitioners. This order was passed in view of the Government Circular issued on 22.5.1981 under which it was incumbent on the petitioners to employ qualified teachers i.e. a teacher qualified with a degree in education for the primary school. Aggrieved by the decision of the petitioners to terminate his services, Respondent No.1 preferred an appeal before the School Tribunal claiming reinstatement with continuity of service and backwages. The appeal was allowed by the Tribunal on the ground that once the appointment order was issued he had become a permanent employee and therefore his services could not have been terminated in the manner adopted by the petitioners. The Tribunal was of the view that although Respondent No.1 was qualified with the B.P.Ed. Degree, there was nothing on record to establish that the petitioners' Ashramshala was a primary school and it could engage only those persons who held the D.Ed qualifications. Significantly, on 20.4.199 in Appeal No.15 of 1997 while deciding an appeal in respect of another employee filed against the Ashramshala, the same member of the Tribunal has held that the B.P.Ed qualification was not sufficient for appointing a person as an Assistant Teacher in a primary school. 3. Mr.Kudle, appearing for the Petitioners, submits that a person holding a B.P.Ed degree cannot be appointed in a primary school if he does not hold the D.Ed. qualifications. He submits that it is now well settled by the judgments of this Court that a D.Ed qualification is mandatory for persons teaching in the primary school. According to him, the Tribunal has incorrectly held that the petitioners are not a primary school. He points out several letters received by the school in which it has been mentioned that the Ashramshala is a primary school. He has drawn my attention to the affidavit filed by the State through the District Social Welfare Officer, WP/3240/1999 : 3 : Solapur wherein it is averred that the Petitioners are a primary Ashramshala having classes from 1st to 7th standard. It has further been averred that the B.P.Ed qualification is of no use for a person who is appointed as an assistant teacher in a primary school. 4. Mr.Kulkarni appearing for Respondent No.1 draws my attention to the circular issued on 5.11.1997 and submits that the services of Respondent No.1 would be protected in view of this circular. According to him, the circular indicates that the services of those employees who are untrained and are working in primary schools, are not to be terminated only because they lack the qualifications. He therefore, submits, having regard to the circular the Respondent's services ought not to have been discontinued. He also submits that since the Petitioner school is being run upto the 7th standard, the B.P.Ed. qualification is permissible in view of the judgment of the Division Bench of this Court in Kondiba s/o Dattatrao Mirashe v/s State of Maharashtra & Others, 2003 (2) Mh.L.J. 432. 5. The Tribunal while allowing the appeal has not taken cognisance of the circular of 5.11.1997 as it was not produced before the Tribunal. I have perused the circular and in my opinion, the circular is not applicable to Respondent No.1 at all. This is because the services of Respondent No.1 were terminated on 3.5.1997 according to the Petitioners; while Respondent No.1 contends they were terminated in June 1997. The circular would have no application as it specifically stipulates that it will be applicable to those who are in service when the circular was issued. Admittedly, therefore, the Respondent No.1 was not in service on 5.11.1997 when the circular was issued and therefore it cannot govern the services of Respondent No.1. WP/3240/1999 : 4 : 6. Mr.Kulkarni contends that there is a 25% quota available for untrained teachers being appointed in the primary schools which are run upto the 7th standard. He relies on the above judgment of the Division Bench in the case of Kondiba s/o Dattatrao Mirashe (supra). 7. In my view, this judgment does not rescue the Respondent No.1. The petitioner No.2 school is a primary school run from 1st to 7th standard. In view of the aforesaid judgment which relies on the Government Resolution dated 14.11.1979 there is a quota available, to the extent of 25% for graduate teachers who do not possess the D.Ed. Qualification, in primary schools. However, such teachers who are untrained graduate teachers must have the qualification of a B.Ed. Degree together with the graduation degree. In the present case, admittedly, Respondent No.1 was qualified with a BPEd degree and not a B.Ed. Degree. There is nothing on record to indicate that there is equivalence between B.P.Ed. Degree and B.Ed. Degree for the purposes of appointment as untrained teachers. Therefore, the judgment in Kondiba's case also does not help Respondent No.1. 8. In my opinion, the order of the Tribunal is contrary to law and, therefore, deserves to be quashed and set aside. Accordingly, the impugned order is set aside. 9. Rule made absolute. No costs.