W.P. No.5507 OF 1999 : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5507 OF 1999 Datta Shelke Education Society & anr. ... Petitioners V/s. Shri Namdeo Shankar Patil & Ors. ... Respondents Mr.C.G. Gavnekar a/w Mr.Ashutosh Gavnekar for Petitioner Mr.Subhash Langote for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. DATED: JULY 23, 2010 ORAL JUDGMENT: 1. Petitioner No.1 is a society which runs the petitioner No.2 school. In 1993, the Petitioner No.2 school was established by Petitioner No.1 with the consent of Group Grampanchayat, Parale, Ninai and the Deputy Director of Education the Petitioners commenced the 8th standard in the academic year 1993-94. Permission to start 9th and 10th standard classes was also granted later. An advertisement was published by the petitioners on 9.5.1994 for recruiting assistant teachers and peons from the ST/NT categories. The candidates were invited for an interview on 3.6.1994. On the selection process being completed Respondent No.1 was appointed as an assistant teacher in the school from 10.12.1994. This appointment according to the petitioners was for a temporary period till they found a suitably qualified candidate to occupy the post. No appointment letter was issued to W.P. No.5507 OF 1999 : 2 : Respondent No.1 when he joined duty on 10.12.1994. On 19.9.1995, an advertisement was issued by the petitioners for filling up the posts of assistant teachers and peons from the reserved category of ST and NT. 2. Interviews were held again. Since there was no suitable candidate other than Respondent No.1 though he did not belong to the category nor was he a trained graduate teacher, he was appointed on a year to year basis. The petitioners contend that an undertaking was submitted by Respondent No.1 that he would not claim any right to the post since he was appointed against a reserved category post. According to the Petitioners, Respondent No.1 left service of his own accord and joined the college at Tardal on 13.6.1996 for obtaining training for the degree of Bachelor of Physical Education. Respondent No.1 filed appeal No.153 of 1996 before the Tribunal on 16.7.1996. He pleaded therein that his services had been illegally terminated by the petitioners. He contended that he was appointed in a permanent clear vacancy and, therefore, was not liable to be terminated on the ground that a suitable candidate from the reserved category had been found by the petitioners. 3. It appears that the appeal was heard and decided by the School Tribunal on 19.6.1997. Aggrieved by that order, the petitioners preferred a writ petition in this Court. That petition was disposed of remanding the matter to the School Tribunal. An application was filed by the petitioners for amending their written statement. It appears that the amendment was granted. Thereafter the School Tribunal passed the impugned order dated 30.6.1999 directing the petitioners to reinstate respondent No. 1 with backwages to the extent of 20%. W.P. No.5507 OF 1999 : 3 : 4. Mr.Gavnekar, appearing for the Petitioners, submits that the Tribunal has erred on two counts; firstly, that respondent No.1 could not have been reinstated in service since he was not duly qualified as a trained graduate teacher to be posted in a secondary school; secondly, that the appointment of Respondent No.1 was for each year till a suitable candidate was available for being appointed to the post. Mr.Gavnekar criticises the order of the Tribunal by contending that these two issues have not been considered by the Tribunal at all. He submits that the respondent No. 1 had no right to work in the establishment of the petitioners since he was not duly qualified. He was merely a graduate, being qualified as a Bachelor of Science. He was not suitably qualifed with degrees like B.Ed., D.Ed., etc. According to Mr.Gavnekar, the MEPS Act and the Rules prescribe that if an assistant teacher is appointed as a trained graduate teacher in a secondary school such as the petitioner No.2, he must have the requisite qualifications of B.Sc., B.Ed. Mr.Gavnekar then submits that in any event even assuming the termination of Respondent No.1 from service was invalid, he had no right to be reinstated in service because of his lack of qualification. He relies on the judgment of the learned Single Judge of this Court in the case of Sanjay Lalbahadur Divedi vs. Shrikrishna Vyayam Shala & Ors., 2010 (3) Mh.L.J. 666. 5. Respondent No.1 though served was not represented in Court when the matter was being heard for final hearing. I have perused his affidavit in reply to the petition when it was heard for admission. W.P. No.5507 OF 1999 : 4 : 6. In my opinion, the criticism of Mr.Gavnekar of the impugned order is justified. Undisputedly, respondent No.1 was employed initially for the academic year 1994-1995. He was only a graduate and did not have the requisite qualifications i.e. of B.Ed. After the completion of one year in service, he was appointed again since the petitioners were unable to secure a candidate from the open market for this post. Respondent No.1 continued in service till 13.6.1996. His services were then terminated. Respondent No.1 has stated in his affidavit that he and three others appeared for the B.Ed. examination in the year 1996-1997 and that he had completed a vocational course for obtaining the requisite qualifications as an assistant teacher. Respondent No.1 has further stated that the declaration which was allegedly issued by him and on which the petitioners relied was false and fabricated and had not been signed by him. He has averred that there was no justification for the termination of his service especially since he had acquired the training qualifications. According to Respondent No.1 in view of the provisions of Rule 6 of the MEPS Rules, 1981 he was entitled to acquire the status of a regular employee. 7. Considering the factual possession in this matter, it must be held that the initial appointment of Respondent No.1 by the petitioners was contrary to law. The requisite qualifications for being appointed as an assistant teacher is B.Sc., B.Ed. Admittedly these were not the degrees with which respondent No.1 was qualified when he was appointed in service. Therefore, even assuming the services of Respondent No.1 had been illegally terminated he would not be entitled to reinstatement. This is because he lacked the requisite qualifications for being appointed as an assistant teacher when his services were terminated. Respondent No.1 was appointed each year for a limited period of the academic year. Therefore, at W.P. No.5507 OF 1999 : 5 : the end of the academic year of 1995-1996, the services of respondent No.1 came to an end by efflux of time. Respondent No.1 therefore is not entitled to reinstatement in service. 8. In case of Sanjay Lalbahadur Trivedi (supra), a learned Single Judge of this Court has dealt with similar factual situation as the present case. The scheme of section 5 and Rule 6 of the MEPS Act and the Rules framed thereunder, has been examined by the Court. After considering several judgments of this Court, the learned Judge summarised the position in law thus: “18. From above discussion it follows that the government resolutions mentioned above and produced on record by petitioner Santoshkumar and relied upon by all three petitioners cannot modify the legislative mandate. They can not claim any right to post and reinstatement by virtue thereof. Only concession made in their favour appears to be a separate quota for admission to that course and facility of inservice training. But then due to mandate of S.5 of 1977 Act permanent vacancy with institution is liable to be filled in at the earliest by appointing qualified/trained person and by putting him on probation. Such permanent arrangement at the earliest is in the interest of students and ultimately the educational goals of State administration. Trained qualified teachers become every year and keeping some of them out because some person appointed by way of concession is getting himself trained will not only be arbitrary but also loss of talent to Nation and will amount to failure to put the expertize to its due use. It may also be discriminatory. Therefore only legislature prescribed year to year appointment of candidates like petitioners with express mandate of replacing the untrained teacher by trained one as soon as possible. Rule 6 of 1981 Rules as applicable here does not prescribe any time limit and does not protect services of untrained teacher. He, in his own interest, has to procure that qualification as early as possible & at his own cost. When permanent vacancy can be filled in through open competitive selections in which all eligible i.e. trained graduate aspirants must participate, untrained teachers getting appointment as a concession can not defeat that process by claiming any exemption from it. Management has to advertise the vacancy with it every year to find out whether trained teacher becomes available or not. Untrained teacher appointed on year to year basis has to apply in response to it and only when W.P. No.5507 OF 1999 : 6 : the duly qualified teacher does not surface, he can be selected. His/Their app ointment is year to year and till the post is not filled in permanently through a duly selected trained teacher, they have no option but to face such selections. Even after acquiring training qualification, for their permanent selections and appointment on probation, they have to compete with others. After getting B.Ed. qualification, Legislation does not permit them to avoid competition with trained teachers when post is sought to be filled in permanently. In service training facility does not confer any precedence in their favour.” 9. In my view, the aforesaid judgment applies squarely to the facts in the present case. Undoubtedly, there was a vacancy with the petitioners when Respondent No.1 was initially appointed in 1994-1995. He was appointed in view of the provisions of Rule 6 which grants a concession to the school to appoint a person who lacks qualifications as a trained graduate teacher. However, such appointment is to be made with the consent of the education officer. There is no material on record to indicate that such consent was ever granted. Therefore, assuming the appointment was made, if the education officer had not approved the appointment of the respondent No.1 as an assistant teacher, her services could have been terminated according to the learned advocate for the petitioner. However, in view of the judgment of the Full Bench in St.Ulai High School vs. Devendraprasad Jagannath Singh, (2007) 1 Mh.L.J. 597 (FB), it is now well settled that the services of an employee cannot be terminated only because no approval was granted by the education officer to the appointment of an employee. However, the employment envisaged by the full bench was a legal appointment i.e. an appointment where the employee had the requisite qualifications to be appointed in a clear and permanent vacancy. In such a case the mere refusal of the Education Officer to grant approval to such an appointment would not ipso facto lead to the consequences of the employee being terminated from service. W.P. No.5507 OF 1999 : 7 : 10. Although the Respondent No.1 may have acquired the qualifications of a trained graduate teacher after his termination from service, there is no material on record to demonstrate that a vacancy exists today. In the present case from the inception the appointment of Respondent No.1 was not made in accordance with law. Therefore, the question of reinstating him does not arise. 11. In these circumstances, the petition is allowed. Rule made absolute. No order to costs.