:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6600 OF 2007 1. The President, Late Shri Ramchandra Patil Sikhshan Sanstha, Kunikonur and ors. ..Petitioners Vs. 1. Haidarali Mahmadhanif Inamdar and anr. ..Respondents Mr. S.G. Deshmukh for petitioners. Mr. Neel G. Helekar for respondent no.1. Mr. S.K. Chinchalikar, AGP for respondent no.2. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : January 31, 2008. Date : January 31, 2008. Date : January 31, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard Mr. Deshmukh the learned counsel for the petitioners. 2. Rule. Mr. Helekar waives service for the respondent no.1 and Mr. Chinchalikar, the learned AGP, waives service for the respondent no.2. 3. Rule is made returnable forthwith. :2: 4. The Education Officer (respondent no.2) is present in the court and Mr.Chinchalikar the learned AGP, on instructions, states that as of now there are five trained graduate teachers in the petitioner no.3 - High School i.e. Shri Hudebaba High School, Kunikonur, whose appointments have been approved by the said respondent and in addition Shri P.N. Rajage is holding the post of Headmaster. The School has Classes from 5th to 10th standards and the total strength of the school is between 240 to 250. The respondent no.2 in his affidavit in reply has pointed out that as of now there are three posts vacant and two of them are for D.Ed. teachers and one post is for a trained graduate teacher. The affidavit further points out and which has been confirmed from the record, that there is already a special teacher (physical education) appointed in the school (Mr.V.B. Patil). The challenge to the impugned judgment and order passed by the School Tribunal is, therefore, required to be tested on these obtaining circumstances. 5. Mr. Deshmukh the learned counsel for the :3: petitioners submitted that Shri Rajage was removed from the post of Headmaster and was reduced in rank to the post of Assistant Teacher. Subsequently, he was removed from the post of Assistant Teacher as well and, therefore, he approached the School Tribunal challenging both the orders in Appeal No. 130 of 1999. The said appeal was allowed as per the judgment and order dated 8/7/2004 by the School Tribunal and Mr. Rajage was directed to be reinstated in the post of Headmaster since the date of his termination i.e. 25/9/1999 with full backwages and other consequential benefits like continuity of service, increment, difference in pay etc. The School Tribunal further directed the management to implement the order within four weeks. As per Mr.Deshmukh, in the meanwhile and after termination of the service of Mr. Rajage, the present respondent no.1 came to be appointed with effect from 1/10/1999 in the vacancy caused by the termination of service of Mr. Rajage. The respondent no.1 possessed the qualification of B.A., B.P.Ed. and, therefore, he could be only appointed as a special teacher (physical education). However, he was appointed as an Assistant Teacher during the pendency :4: of Mr.Rajage’s appeal and initially the respondent no.2 was not inclined to approve the said appointment. The respondent no.1, therefore, furnished an undertaking that he was aware about his appointment in place of Mr. Rajage and if Mr. Rajage succeeds in his pending appeal, the appointment so made would come to an end. There is no dispute that on the basis of this undertaking the respondent no.2 approved the appointment of the respondent no.1 vide his order dated 18/10/2002 but for the academic year 2002-03 only. In the said order of approval the respondent no.2 specifically mentioned as under:- "This approval is granted subject to the final decision in Appeal No.130/99 filed by Rajage before the School Tribunal, Kolhapur, Division Kolhapur. Moreover, approved on the condition that after the decision is given in respect of Shri Rajage, Shri Inamdar H.M. will have to be relieved, from the date of such decision." 6. It is further pointed out that the judgment :5: and order rendered by the School Tribunal in Appeal No. 130 of 1999 filed by Mr. Rajage was challenged before this court in Writ Petition NO. 6682 of 2004. The said petition was filed by one Mr. Rajaram B. Padolkar who was perhaps In-charge Headmaster and was shown as respondent no.5 in Appeal No. 130 of 1999. This court was pleased to dismiss Writ Petition No. 6682 of 2004 by its order dated 13/4/2005. 7. The management by its order dated 11/8/2004 terminated the service of respondent no.1 and he was relieved from service solely on the ground that Mr.Rajage had succeeded before the School Tribunal and the respondent no.1 was required to go as per the undertaking he has furnished and on the basis of which his appointment was approved for the academic year 2002-03 by respondent no.2. The said order dated 11/8/2004 was the subject matter of challenge in Appeal No.47 of 2004 filed by the present respondent no.1. 8. It is clear from the record that in the affidavit in reply filed on behalf of the management, :6: the appeal filed by the present respondent no.1 was whole-heartedly supported and it was also contended that having worked for almost for five years, respondent no.1 had attained the status of a deemed permanent teacher within the meaning of Section 5(2) of the M.E.P.S. Act, 1977. The School Tribunal was impressed by the Written Statement filed by the management and, therefore, it held that when the appellant (respondent no.1) had put in four years and 9 months of service, he had attained the status of a permanent teacher and if Mr. Rajage was required to be reinstated the appellant would be rendered surplus and would be entitled for the benefits of absorption in some other school. Consequently, Appeal No.47 of 2004 came to be allowed by the impugned judgment and order directing the reinstatement of the respondent no.1 with full backwages and continuity of service with effect from 11/8/2004. 9. Mr. Helekar the learned counsel for the respondent no.1 has supported the impugned judgment and order and submitted that this petition has been filed because of the internal rivalry between the two :7: groups of the management. Even otherwise, the respondent no.1 had worked for almost five years and had obtained the status of a deemed permanent teacher. If he was found to be surplus on the reinstatement of Mr.Rajage, he would be entitled for the benefits of absorption in other secondary school as per the scheme of Rule 26 of the M.E.P.S. Rules, 1981. In the alternative Mr. Helekar has pointed out that as of now there is sufficient workload for the respondent no.1, both as an Assistant Teacher as well as Special Teacher. As per Mr. Helekar the existing Special Teacher Mr. Patil cannot conduct the classes of physical education from 5th to 10th standards and one more teacher for physical education is required. He also pointed out that said Mr. Patil has never assigned the duties of Assistant Teacher in physical education and, in fact, his approval is only as an Assistant Teacher and not as a Special Teacher. 10. Admittedly, there was no advertisement released to fill in a regular vacant post of an Assistant Teacher when the respondent no.1 came to be appointed on 1/10/1999. Further, not at the time of :8: appointment but subsequently when the respondent no.2 declined to approve his appointment, the respondent no.1 was aware that his appointment was only in the vacancy of Mr. Rajage and if he succeeded before the School Tribunal, the respondent no.1 would be required to make way for him. This clearly implied and more particularly undertaking furnished by the respondent no.1 himself that his appointment was temporary and it would stand only if Mr. Rajage would fail before the School Tribunal. There is no approval to his appointment for the academic year 2001-02 and 2004-05. He was discontinued in the academic year 2004-05 and solely on the basis of the judgment and order rendered by the School Tribunal allowing the appeal filed by Mr.Rajage. 11. Secondly, the respondent no.1 does not meet the educational qualifications for the appointment as an Assistant Teacher and he is qualified to be appointed only as a Special Teacher (physical education) as he holds the degree of B.P.Ed. and he does not hold the degree of B.Ed. The School Tribunal, therefore, fell in gross errors in holding :9: that the appellant-respondent no.1 had attained the status of a permanent teacher within the meaning of Section 5(2) of the M.E.P.S. Act, 1977. The reply filed by and on behalf of the management before the School Tribunal was far from the facts and the said reply did not indicate whether the respondent no.1 had undergone the regular process of selection on an advertisement being released for the vacant post and applications having been received for such a selection and that the respondent no.1 was one of the applicants who was interviewed along with others by the Selection Committee. A Teacher who has not gone through the regular process of selection against a permanent vacant post cannot have a claim of permanency only on the ground that he had worked for two years or more in a particular school. 12. In the affidavit-in-reply filed by the respondent no.2 and as has been noted hereinabove, there is no scope for the respondent no.1 being even otherwise absorbed in petitioner no.3-school. With a strength of about 241 students from 5th to 10 standards one Assistant Teacher appears to be enough. :10: However, this is an issue between the management and respondent no.2 and if it is found that an additional teacher for physical education is required and is permissible under the Rules and the guide-lines laid down by the State Government, obviously the management will have to advertise the said post and invite applications. The respondent no.1 would be certainly eligible to apply for the said post and having put in almost five years of service would obviously stand in preference. From the information furnished by the Education Officer today, it is clear that the petitioner no.3-school, as of now, has three teachers whose appointments have not been approved and none of them is is D.Ed. teacher. It would be necessary for the petitioners to release an advertisement for the appointment of two D.Ed. teachers and one B.Ed. teacher and invite applications. The existing teachers cannot continued when there is no approval and more so when the petitioner no.3 is an aided school. 13. In the premises, this petition succeeds and the same is hereby allowed. Impugned judgment and :11: order is quashed and set aside and consequently Appeal No.47 of 2004 stands dismissed. In the event the management is required to fill in the additional post of Assistant Teacher in physical education, the respondent no.1 shall be given preference in the said selection if he applies for the same. Rule is made absolute accordingly with no order as to costs. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)