1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR. WRIT PETITION NO. 942 OF 2001 Gautam Tarachand Humne, aged 39 yrs., Occu. Assistant Teacher, R/o Somalwada, Post Rengepar, Tah. Lakhani, Distt. Bhandara. PETITIONER. VERSUS 1. The Secretary, Jivan Shikshan Sanstha Lakhani, Tah. Lakhani, Distt. Bhandara. 2. The Head Master, Kasturba Gandhi Vidyalaya, Channe (Dhanla). 3. The Education officer (Secondary), Zilla Parishad, Bhandara. 4. Anmol Arun Gajbhiye, aged 38 yrs., Occu. Teacher, C/o Kasturba Gandhi Vidyalaya, Channa (Dhanla) Tah. Lakhani, Distt. Bhandara. 2 5. The Presiding officer, School Tribunal, Chandrapur. RESPONDENTS. Shri. R. Sharma, Counsel holding for Shri Parchure Counsel for the petitioner. Shri. P. C. Madkholkar, Counsel for the respondents Nos. 1 & 2. Smt. A. R. Taiwade, AGP for respondent No. 3. CORAM: J. H. BHATIA J. Date: 27th JANUARY 2009. ORAL JUDGMENT: Petitioner was admittedly appointed in Siddhartha Vidyalaya Lakhani Bhandara run by Jiwan Shikshan Sanstha Lakhani with effect from 01.07.1986. That appointment was temporary and for a period of 11 months. Every year till the year 1991 the Management issued orders for his appointment for a period of 11 months in the said Siddhartha Vidyalaya. He continued in that school upto 31.10.1990. Siddartha Vidyalaya Lakhani is a non grant school run by the Management. The same Management is also running another school known as Kasturba Gandhi Vidyalaya Channa. As one teacher had resigned there was a vacancy in that school from 3 1.11.1990. Kasturba Gandhi Vidyalaya is a grant-in-aid school. As there was vacancy in that school the management gave fresh appointment to the petitioner in Kasturba Gandhi Vidyalaya from 01.11.1990 on temporary basis for academic year 1990-1991 till the end of academic session. Again he was given appointment in Kasturba Gandhi Vidyalaya for the year 1991-92. The petitioner was a graduate and he claimed to be holding a degree of “Shikshalankar” from Rashtriya Patrachar Sanstha Kanpur (U. P.) and that was supposed to be equivalent to B. Ed. degree. However the said degree of “Shikshalankar” was not recognised in Maharashtra as equivalent to B.Ed. On 24.07.1990 Government of Maharashtra issued a Circular whereby the teachers who were holding “Shikshalankar” from Kanpur were given two years time to acquire B. Ed. or equivalent qualification from recognised University in Maharashtra so as to protect their services. It was provided that such teachers should be given admission in the B. Ed. colleges on priority basis and after obtaining necessary qualification they would be absorbed in the grade of trained teachers but their earlier service rendered as untrained teacher would not be 4 counted for the purposes of seniority. On 28.08.1991 the Management recommended the name of the petitioner to Yashwantrao Chavan Open University Nashik as well as Government B. Ed. College at Bhandara for giving him admission in the B. Ed. Course. As his name was approved by the Education Officer, he was relieved on 03.09.1991 to undertake the training and course of B. Ed. According to the petitioner he joined B.Ed. College Bhandara. According to the petitioner after having completed the training he reported at the school on 22.06.1992 to resume his duties. However he was not allowed to join the duty. The management had already issued an advertisement calling applications for the post of teachers and appointment of a trained teacher was made in pursuance of that advertisement. Being aggrieved by the refusal of the Management to allow him to join the duties, the petitioner preferred an appeal No. STN/258/92 before the School Tribunal. 2. Appeal was contested on behalf of the Management as well as Education officer, Z. P. Bhandara. As per the Management the 5 petitioner had not completed and secured the necessary educational qualifications of B. Ed. from recognised university of Maharashtra within a period of 2 years as per the Government Notification dated 21.07.1990 and therefore he is not entitled to be taken back in the service and to be absorbed in the regular service. It is contended that he could be allowed to resume the duties and absorbed in the regular job if he would have completed the training and obtained the degree of B. Ed. within a period of two years from the date of Government Notification. As he was not trained and he had not obtained the necessary qualification he was not entitled to protection of that Government Resolution. The action of the Management in inviting the applications by advertisement in 1992 and then making appointment was defended. It was contended that respondent No.4 was actually interviewed, selected and appointed to the post of teacher after following regular procedure of appointment. 3. After hearing the parties the School Tribunal dismissed the appeal of the petitioner, hence this petition. 6 4. Heard learned counsel for the parties. The learned counsel for the petitioner vehemently contended that School Tribunal did not consider the case in proper perspective because in the last but one para of the judgment the School Tribunal observed that petitioner had not given any details about passing of B. Ed. examination from Kanpur and also he did not attempt to prove that having attended B. Ed. training course of the Nagpur University he had actually passed that examination or not. The judgment was delivered on 18.10.2000 by the School Tribunal. Learned counsel for the petitioner contended that the petitioner had in fact appeared in the examination but he could not clear it in the year 1993 but he had actually passed that examination held in Summer 1994 from the Government B. Ed. College Bhandara and for this degree has been conferred on him by Nagpur University. He also contended that as per the Government Resolution dated 10.02.1994 in respect of untrained teachers, who were already in service before 10.02.1989, time was extended upto 01.06.1995 to secure necessary educational qualification and as before 7 that date he had secured the degree he is entitled to protection. This is challenged by the learned counsel for the respondent Management as well as by the Assistant Government Pleader on the ground that said Government Resolution dated 10.02.1994 is not applicable to the petitioner because he was not in service of non grant school when he was relieved to undergo the training for B. Ed. 5. After hearing the learned counsel for the parties and perusal of the relevant Government Notifications and Government Resolutions there appears no dispute that the present petitioner was serving with Siddhartha Vidyalaya Lakhani run by the Jiwan Shikshan Sanstha from 01.07.1986 to 31.10.1990 though every year separate appointment letters were given to him. Admittedly he was in service of Kasturba Gandhi Vidyalaya run by the same Management with effect from 01.11.1990 and he was relieved from that school on 03.09.1991 for the purpose of undergoing necessary training and for securing the degree of B. Ed. It appears that there were some teachers in the employment of certain schools in Maharashtra and such 8 teachers were appointed on the basis of the degree of “Shikshalankar” secured from Rashtriya Patrachar Sanstha Kanpur but that degree was not treated as equivalent to a degree of B. Ed. in the State of Maharashtra. In view of the representation made by the teachers and as a matter of sympathy for such teachers and to protect their services the Government decided to issue Notification dated 24.07.1990. As per that Notification as a special case in respect of such teachers they were to be given two years time from the date of Notification to secure necessary qualification of B. Ed. from recognised University of Maharashtra. To facilitate this object the Government also directed the Management to give priority to such persons to go on training and also to continue their services after obtaining the necessary qualification. As per the said Notification when they would be relieved from service for taking such education their absence would not be treated as discontinuity in service and it further required that after obtaining the necessary qualifications such teachers should be absorbed in prescribed pay scales of the trained teachers. On reading this Notification it appears that this benefit was available to all such 9 teachers, who had secured the degree of “Shikshalankar” from Kanpur irrespective of whether the School, in which they were serving was receiving grants-in-aid or was an unaided school. This benefit was naturally available for two years from 24.07.1990. It means the petitioner was expected to secure the necessary qualification of B. Ed. from recognised university of Maharashtra upto 24.07.1992. Even as per the documents produced by the petitioner himself he had appeared for the examination of B. Ed. in the year 1992. For some time the result was not declared due to technical reasons and in 1993 result was declared and he was declared fail. In Summer 1994 he again appeared for the examination and he passed the examination and secured B. Ed. in IInd division. Even though the degree was actually conferred by the Nagpur University in the year 1996, it may be presumed that he had secured necessary qualification as soon as he passed B. Ed. examination in summer of 1994. From this it is clear that the petitioner had not secured the necessary degree of qualification of B. Ed. within two years from 24.07.1990 and therefore that Notification would not give him protection in the service. 10 6. On perusal of the Government Resolution dated 10.02.1994 it appears that the Government by this G. R. decided to give protection to the untrained teachers who were in service since prior to 1974 in any secondary school as well as to those untrained teachers who were in service since prior to 10.02.1989 in the unaided secondary school. We are not concerned with the untrained teachers who were in service since prior to 1974. Admittedly the petitioner was in service since prior to 10.02.1989 with the same Management. This Government Resolution dated 10.02.1994 reveals that earlier, to give protection to the untrained teachers working in private grant-in-aid secondary schools since prior to 1974, time was given to secure Degree or Diploma in B. Ed. or equivalent upto 30.06.1990 so that their services could be protected. That period was extended by Government Resolution dated 25.08.90 upto July 1991. Then by Resolution dated 27.08.1990 it was further extended. The benefit was also given to the untrained teachers serving with private non grant-in-aid secondary schools who were in service since prior to 10.02.1989 and they were given time upto 01.06.1993 to secure necessary educational 11 qualification. It appears that there were no such extension beyond 01.06.1993. However, by Government Resolution dated 10.02.1994 the Government extended that time to secure the necessary qualification up to 01.06.1995 and it was made clear that during the period between 01.06.1993 till 10.02.1994 when this Government Resolution was issued if persons were removed from service due to their non obtaining necessary qualification they shall also be treated to be in service as they would be protected. On careful reading of this Government Resolution it becomes clear that this part of extension of time upto 01.06.1995 for obtaining necessary qualification of B. Ed., was given only to the untrained teachers working with private non grant-in-aid secondary schools provided they were in service since prior to 10.02.1989. Naturally it can be interpreted that Government Resolution would be applicable only to those teachers who were in actual service of non grant-in-aid school on the date of this Government Resolution, since prior to 10.02.1989. As pointed out earlier the petitioner was in non grant-in-aid school i.e. Siddhartha Vidyalaya Lakhani from 1986 till 31.10.1990, but from 01.11.1991 he 12 was appointed in Kasturba Gandhi Vidyalaya which is a grant-in-aid school. As he was not in service of non grant-in-aid school on the date of issuance of this Government Resolution dated 10.02.1994 he could not get the benefit of this Government Resolution. 7. Taking into consideration the facts and cirumstances noted above it is clear that the petitioner had failed to secure the necessary qualification of B. Ed. from recognised university of Maharashtra within 2 years from the Notification dated 24.07.1990 and therefore his services could not be protected under that Government Resolution. It is true that the Management had hurried to make an appointment of respondent No.4 by issuing an advertisement in May 1992 when the period given by the Government Resolution dated 24.07.1990 was not over and the petitioner still had time to complete the same. Had the petitioner completed his B. Ed. and secured the necessary qualification before 24.07.1992, he could be given protection under that Notification in spite of the appointment of respondent No.4 made by the Management but as the petitioner failed to secure that 13 qualification within a specified period merely because of the technical fault committed by the management, appointment of the respondent No.4 cannot be set aside nor the petitioner can be directed to be reinstated and regularised as a trained teacher. In view of these circumstances I see no reason to interfere in dismissal of the appeal by the School Tribunal. 8. For the aforesaid reasons, the petition stands dismissed. JUDGE svk