1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Writ Petition No. 4102 of 08 Mohada v. State and ors ------------------------------------------------------------------------------------------------------------- - Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr Anand Parchure, Adv for petitioners. Ms Bharti Dangre, Addl GP for respdts Coram : D.D. Sinha and A.P. Bhangale, JJ Dated : 17th March 2009 1. Heard Mr Anand Parchure, learned counsel for petitioners and Ms Bharti Dangre, learned Addl. GP for respondents. This writ petition is directed against impugned communication dated 6.4.2008 whereby proposal in respect of petitioner no.3 submitted by petitioners no. 1 and 2 for grant of approval to the post of Hostel Superintendent came to be rejected. Mr Parchure has submitted that petitioner no. 3 was originally appointed on the said post with effect from 3.11.2002. Initial appointment of the petitioner was for one year and at the relevant time, the petitioner was having HSC qualification. It is 2 contended that appointment of the petitioner no. 3 was continued from time to time and the last order of appointment was issued in the year 2005. It is contended that this Court in its judgment dated 6th April 2004 passed in Writ Petition No. 473 of 2004 in paragraph 3 has observed thus - “The Government of Maharashtra has issued a resolution dated 5th February 2000 in which it has been specifically clarified in clause 6 that in respect of Hostel Superintendents, the requirements of holding D.Ed. qualification stands relaxed and that the qualification required of the aforesaid post would be a passing of the H.S.C. examination. However, it has been stated that preference would be given to those who hold a B.P.Ed. qualification. In so far as the legal position is concerned, there is no dispute about the fact that an Ashram School does not fall within the scope and purview of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. In so far as the petitioners are concerned, they are not Assistant Teachers employed in an Ashram School since there is no dispute about the fact that they are holding the post of Hostel Superintendent.” 2. Learned counsel further contended that the 3 observations made by the Division Bench in paragraph 4 are also relevant, which read thus - “The Project Officer who is impleaded as the 4th respondent in these proceedings, has sought to place reliance on the circumstance that the post of Superintendent in a Ashram School hostel carries the same pay-scale as that of a primary teacher and that in the circumstances, holding of D.Ed. qualification is mandatory. The mere fact that the pay-scales of the two posts are the same, is no reason to arrive at any such inference. The qualifications which are necessary for the post have to depend upon the nature of the functions, the responsibilities and the duties that are attached to the post. The mere fact that the pay-scale for the post of Hostel Superintendent and for the post of Primary Teacher are the same, is no ground to deny approval to the petitioners for the reason that they do not hold the D.Ed. qualification, particularly when the Government in its Resolution dated 5th February 2000 has specifically relaxed the holding of a D.Ed. qualification in the case of Hostel Superintendent....” 3. Learned counsel for the petitioners has submitted that on the basis of the above-referred judgment, the Government has 4 issued Government Resolution dated 3.6.2008, whereby the qualification of D.Ed. is relaxed as an essential qualification for considering the claim of the candidate for the post of Hostel Superintendent. It is further submitted that in such situation, communication issued by respondent is bad in law. 4. Learned Addl. Government Pleader has submitted that the petitioner no. 3 was appointed for a specific period in the year 2000 in a leave vacancy. The said period was from 3.11.2000 to 31.12.2001. Petitioner no. 3 was having qualification of HSC only, whereas at the relevant time, necessary qualification for the post of Hostel Superintendent was HSC D.Ed. It is further contended that since the appointment of petitioner no. 3 was for a specific period and in leave vacancy, same came to an end on 31.4.2002. It is further submitted that thereafter the petitioner no. 3 came to be appointed from time to time for a specific period only and the last order of appointment was issued by petitioners no. 1 and 2 for the period from 1.7.2005 to 31.4.2006. It is contended that by virtue of Government Resolution issued in the year 2006, necessary qualification for the post of Hostel Superintendent was HSC, BSW. Respondent on earlier occasion rejected proposal of petitioner no. 3 vide order dated 30.3.2003 on the ground that the petitioner did not possess D.Ed. qualification. It is further submitted that appointment of the 5 petitioner no. 3 at no point of time was approved by respondents nor petitioner no. 3 was at any point of time treated to be an untrained teacher. Fresh appointment orders were given to petitioner no. 3 every time and were for a specific period. 5. It is further contended that in view of the Government Resolution of the year 2006, necessary qualification for the post of Hostel Superintendent was HSC, BSW and since the petitioner did not possess the said qualification, proposal of petitioner no. 3 for grant of approval came to be rejected by respondent vide impugned communication in the year 2008. 6. Learned Addl. Government Pleader further contended that so far as decision of the Division Bench is concerned, petitioners in the said petition were granted approval by the Department as untrained teachers and they were continued in the employment as untrained teachers for number of years and, therefore, in such peculiar circumstances, the Division Bench considering the other aspects has held that D.Ed. qualification, in fact, was not necessary looking to the nature of duties required to be discharged by the Hostel Superintendent and on the basis thereof, the Government has issued resolution dated 3.6.2008 accordingly and it was made applicable to those who were in employment. 6 7. Considered the contentions canvassed by learned counsel for respective parties and perused the decision of this Court. In the instant case, appointment of the petitioner no. 3 in the year 2000 was made in a leave vacancy and for a specificd period. It is not in dispute that the petitioner no. 3 was not holding requisite qualification i.e. H.S.C. D.Ed. It is also not in dispute that subsequent appointments of the petitioner no.3 on the post of Hostel Superintendent were made for a specific period and the last in the row was in the year 2005 for the period from 1.7.2005 to 30.4.2006. It is also not in dispute that respondent vide order dated 30.3.2003 had rejected proposal of petitioner no. 3 for grant of approval on the ground that the petitioner did not possess necessary qualification i.e. H.S.C. D.Ed. in view of the Government Resolution of the year 1985. Respondent by impugned communication which is issued in the year 2008 once again rejected proposal of petitioner no.3 for grant of approval since the petitioner no.3 did not possess necessary and requisite qualification in view of the Government Resolution of the year 2006 which requires the candidate to possess HSC BSW qualification. It is not in dispute that appointment of the petitioner no. 3 was never approved by respondent right from the beginning till the impugned communication issued as untrained teacher by respondent. On the other hand, it is evident that every time the appointment was given for a specific period and stood 7 terminated at the end of session and, therefore, action of the respondent, in our view, is based on circulars/Government resolution which were holding the field at the relevant time. 8. So far as decision of this Court is concerned, petitioners in the said writ petition were given approval by the Department as untrained teachers and were continued for number of years as untrained teachers and in such situation as well as considering the nature of duties to be discharged by the Hostel Superintendent, this Court came to the conclusion that merely because pay-scale of Hostel Superintendent and Assistant Teacher though are similar, however, nature of duties required to be discharged by Hostel Superintendent and Assistant Teacher being different and distinct, there was no point in insisting upon D.Ed. qualification. However, in the present case, essential qualification as per the Government Resolution of the year 2006 is HSC, BSW which the petitioner did not possess. Therefore, we are of the view that the action of respondent in rejecting proposal of the petitioner for grant of approval appears to be sustainable in law. No case is made out for showing indulgence. Writ Petition is dismissed. Judge. Judge. hsj