1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION NO. 2674/2008 (Sahebrao Rambhau Bhagat Vs. President, Savitribai Shikshan Prasarak Mandal & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Dr. Anjan De, Adv. for the petitioner. Mr. P.B. Patil, Adv. for R- 1 and 2. CORAM : Smt. Vasanti A. Naik, J. DATED : 19 th NOVEMBER, 2008. By this petition, the petitioner impugns the judgment passed by the Presiding Officer, School Tribunal, Amravati, on 8th October, 2007 in Appeal No. 24/2004, dismissing the appeal filed by the petitioner challenging the order of termination of his service from the post of Assistant Teacher. I have considered the submissions made on behalf of the parties and have also perused the impugned judgment dated 8th October, 2007. It is not in dispute that the petitioner did not possess the B.Ed. qualification at the time of his appointment. The Tribunal had rightly relied on the judgment of this Court reported in 2005(3) Mh.L.J. 696 to hold that a candidate holding a graduate decree and B.P.Ed. qualification was not eligible to be appointed as Assistant Teacher in substantive 2 capacity for teaching a subject. It was held by this Court in the aforesaid judgment that the Assistant Teacher should necessarily possess B.Ed. degree as training qualification. Since the petitioner did not possess B.Ed. qualification, the Tribunal was justified in holding that the appointment of the petitioner was not in accordance with law. The judgment reported in 2007(1) Mh.L.J. 860 and relied on by the counsel for the petitioner, cannot be made applicable to the facts of this case, to hold that the candidate possessing B.P.Ed. qualification is also eligible to hold the post of Assistant Teacher as this Court, in the case reported in 2007(1) Mh.L.J. 860 distinguished the case reported in 2005(3) Mh.L.J. 896 to hold that in the case reported in 2005(3) Mh.L.J. 896, this Court was considering the eligibility criteria under the M.E.P.S. Rule, 1981, but in the case reported in 2007(1) Mh.L.J. 860, the Court was considering the appointments of the petitioners therein which were made prior to the enforcement of the M.E.P.S. Rules, 1981. Though it is submitted on behalf of the petitioner that grant of approval by the Education Officer is not a condition precedent for a valid order of appointment and, therefore, the Tribunal was not justified in giving undue weightage to the fact that 3 the appointment of the petitioner was not approved, it would also not be relevant for considering the correctness of the order passed by the Tribunal as in this case the petitioner was not eligible to be appointed on the post of the Assistant Teacher and, therefore, the question of grant or refusal of approval would not arise. The Tribunal has also rightly noticed that the appointment of the petitioner was not made in accordance with the provisions of Section 5 of the M.E.P.S. Act and the provisions of Rule 9 of the M.E.P.S. Rules as the same was not signed by the Principal/Head of the School and the Secretary of the School Committee. The submission made on behalf of the petitioner that though the appointment order was signed only by the President of the society, there was a resolution supporting the appointment of the petitioner on the post of Assistant Teacher and, therefore, it cannot be said that the appointment of the petitioner was in contravention of the provisions of Section 5 of the M.E.P.S. Act, and Rule 9 of the M.E.P.S. Rules, is also liable to be rejected. It has been laid down by this Court in the judgment reported in 2002 (4) Mh.L.J. 225, that an appointment of an Assistant Teacher which is not in accordance with the provisions of Section 5 of the Act and Rule 9 of the 4 Rules, and in the proper form, is illegal and the Teacher cannot base his/her claim on such appointment order. The principle of de facto doctrine as submitted by the counsel for the petitioner, cannot be applied to the case. Even otherwise, since the petitioner was not eligible to be appointed on the post of Assistant Teacher, the appeal of the petitioner was liable to be dismissed on that short ground. The reasons recorded by the Tribunal in the judgment dated 8/10/2007 for dismissing the appeal filed by the petitioner cannot be found fault with. There is no jurisdictional error in the judgment passed by the School Tribunal. The writ petition is, therefore, dismissed with no order as to costs. JUDGE RMP