1 UNREPORTED IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.739 OF 2002. 1. The President, Rehabilitation Dhanegaon Backward Class Shikshan Prasarak Mandal, Dhanegaon Camp, Taluka Kaij, Dist. Beed. 2. The Secretary, Rehabilitation Dhanegaon Backward Class Shikshan Prasarak Mandal, Dhanegaon (Camp), Taluka Kaij, Dist. Beed. 3. The Head Master, Dhaneshwari High School, Dhanegaon Camp, Taluka Kaij, Dist. Beed. ... Petitioners. Versus 1. Vasant S/o Laxmanrao Jadhav, Age about years, Occ.Nil, R/o Dhanegaon, Tq. Kaij, District Beed. 2. The Education Officer (Secondary), Zilla Parishad, Beed. ... Respondents. 2 ... Mr.V.G.Sakolkar, advocate for the petitioners Mr. V.L.Dhoble, advocate for the Respondent No.1. Mr.D.V.Tele, A.G.P. for the Respondent No.2. ... CORAM : V.R.KINGAONKAR,J. Date : 09/14.07.2009. ORAL JUDGMENT 1. By this petition, the petitioners impugn judgment and order rendered by the learned Presiding Officer, School Tribunal, Aurangabad, in appeal No.94/1993, whereby the Respondent No.1 was directed to be reinstated in service as Assistant Teacher. 2. The case of the Respondent No.1 before the School Tribunal was that he is member of Scheduled Caste and is qualified as H.S.C.(ATDC). Thus, he is trained Teacher having Arts Teachers Diploma Certificate. He was called for interview in pursuance to his application which was submitted in response to an advertisement of the petitioners. He was selected for post of Assistant Teacher. He joined the service on 18.7.1989 as an Arts Teacher. He was appointed 3 in clear vacant post on establishment of the School run by the petitioner. He was orally terminated from service without giving any notice. He challenged oral termination dated 2.7.1993. By the impugned judgment and order, the School Tribunal held that the Respondent No.1 is duly qualified as Assistant Teacher. It has been further held that his termination is violative of Rule 28 of the MEPS Rules. The School Tribunal allowed his appeal and directed that he shall be reinstated in service. 3. The case of the petitioners before the School Tribunal was that the Respondent No.1 misrepresented himself as V.M.Jadhav (Vijay Madhukar Jadhav) and submitted a marks memo of B.Com. though he is not a graduate. The petitioners further alleged that the Respondent No.1 committed fraud while securing the appointment. The petitioners contended that the Respondent No.1 managed false appointment letter with connivance of the Head Master of the School. The same averments are reiterated in the present petition. 4 4. The question involved in this petition is whether the Respondent No.1 is duly qualified trained teacher and was illegally terminated from service by the petitioners or that he committed fraud while obtaining the appointment and as such the very appointment order itself is nonest. 5. Heard learned counsel for the petitioner and Respondent No.1 and learned A.G.P. for the State. Dt.14.07.2009. 6. At the threshold, let it be noted that the Respondent No.1 is only SSC and ATD. He is not duly qualified for appointment as Assistant Teacher for any subject other than the subject of Arts. It is explicit that the qualification for appointment as Assistant Teacher as contemplated under Rule 6 read with Schedule B of the MEPS Rules in Secondary Schools is a Bachelor's degree plus B.Ed. or equivalent qualification. It is only in respect of drawing Teachers that entry in sub-rule II(3) of Schedule B can be considered. 5 It reads as follows : II. Qualification for trained Teachers in Secondary Schools and Junior Colleges of Education ...... (3) For Drawing Teachers : A Drawing Teachers or a Drawing Masters' Certificate or an Art Masters' Certificate or Art Teachers' Diploma or Art Masters' Diploma" Thus, only for the appointment of a person as a Drawing Teacher,the qualification as ATD will be relevant and suffice. The question, therefore, is whether the Respondent could be appointed as Assistant Teacher when he did not possess degree in any faculty alongwith Bachelor's degree in Education. 7. The learned Presiding Officer of the School Tribunal did not address the issue regarding requirement of qualification for the appointment as Assistant Teacher qua the 6 Respondent No.1. The issues raised by the learned Presiding Officer of the School Tribunal are thus : "(i) Whether the services of the appellants were terminated by Respondent Management on 2.7.1993 in contravention of the MEPS Rules, 1981 or MEPS Act, 1977 and thus deserves to be set aside.? (ii) Whether both the appellants are entitled to be reinstated.?" Thus, it is quite clear that the learned Presiding Officer did not adhere to the question of due qualification of the Respondent No.1 for eligibility to work as Assistant Teacher. It appears that the learned Presiding Officer was somewhat confused due to simultaneous consideration of two appeals, one filed by the Respondent No.1 and another filed by one Nathrao Prabhakar Palwade. The learned Presiding Officer was much impressed by the fact that the Respondent No.1 was appointed w.e.f. 18.7.1989. 7 Basically, the question is as to whether there was a vacant and permanent post for appointment of the Respondent No.1 as a Drawing Teacher. Nowhere such issue is considered by the learned Presiding Officer of the School Tribunal. 8. This Court in "Anna Manikrao Pethe Vs.Presiding Officer,School Tribunal, Amravati and Aurangabad Division, Amravati and others" 1997 (3) Mh.L.J.697, held that framing of preliminary issues is required in such a matter. So also in "Rajiv Shikshan Sanstha Vs. State of Maharashtra" 2004 (5) Mah.L.J. 320, this Court held that framing of issues viz. whether the appointment of teacher was made as per Section 5 and whether it is approved by the Education Officer are required to be framed. 9. So far as recognition of the petitioners' School is concerned, the issue may not have been framed. Still, however, it was necessary for the Tribunal to frame issue regarding availability of the vacant and permanent post for appointment of the Respondent 8 No.1 as a Drawing Teacher. The learned Presiding Officer held that the letters issued by the Head Master of the School indicated that name of the Respondent No.1 was properly spelt out and he was allowed to join the service. The learned Presiding Officer of the School Tribunal held that the Respondent No.1 was appointed as a Drawing Teacher on 18.7.1989. How come that he was subsequently termed as "Assistant Teacher" while seeking approval for the post is not clear from the record. Mr.Sakolkar, learned advocate seeks to rely on "Shivshakti Shikshan Sanstha Kotha (Veni) and another Vs. Nilkanth Kawaduji Shivankar and another" 2005 (2) Bom.C.R. 105. A Single Bench of this Court held in the given case that whether the Assistant Teacher is eligible to be appointed as a trained teacher is required to be considered in view of Schedule B clause 2(1) (ii) and Government Resolution dated 14.5.1987. It was held the candidate having B.Com.B.P.Ed. qualification is not eligible to be appointed as Assistant Teacher in substantive capacity for teaching subject. The circumstances notices from the present case warrant me to remit the matter 9 to the learned Presiding Officer of the School Tribunal to determine the relevant issues, particularly, regarding eligibility of the Respondent No.1 for appointment and continuation as Assistant trained Teacher. The School Tribunal may also frame other relevant issues including issue about fraud played by the Respondent No.1 by misrepresentation of his name as V.M.Jadhav. 10. For the foregoing reasons, the petition is partly allowed. The impugned judgment is quashed. The Appeal No.94/1993 is restored to its original position with direction that the learned Presiding Officer of the School Tribunal shall frame appropriate issues in the light of foregoing discussion and thereafter to decide the appeal afresh. The appeal be expeditiously decided on merits within a period of six (6) months as far as possible. The parties to appeal before the learned Presiding Officer of the School Tribunal on 17.8.2009. Rule made absolute 10 accordingly. No costs. (V.R.KINGAONKAR,J.) Authenticated Copy (Pvt.Secy. to Hon'ble Judge) asp/office/wp73902