1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7257 OF 2004 Anil Bhanudas Shedge .. Petitioner Versus Subhashnagar Education Society & Ors. .. Respondents Mr. Sunil Dighe for the Petitioner. Mr A.P. Vanarse, AGP, for the Respondent-State. CORAM : SMT. NISHITA MHATRE, J. DATE : 11 TH JUNE, 2010. ORAL JUDGMENT : 1. The petitioner has preferred the present Writ Petition against the decision dated 29th June, 2004 of the School Tribunal, Mumbai in Appeal No.MUM-40 of 2002. By this judgment the School Tribunal has dismissed the Appeal and held that the petitioner is not entitled to the reliefs claimed by him in the Appeal. 2. The petitioner is qualified with the Degrees of B.Sc., B.P.Ed. On 20th April, 1999, an advertisement was published by the respondent No.1-Education Society 2 for a full time Assistant Teacher for Physical Training. The post advertised was a clear and permanent vacancy. The advertisement did not in any manner indicate that the appointment would be made against a reserved category post. In fact, the advertisement specifically stated that the post advertised was for an Assistant Teacher from the open category having a qualifications of B.A., B.P.Ed. 3. The petitioner applied in accordance with the advertisement and was duly selected. He was issued an appointment letter on 7th June, 1999, wherein it was stated that he was appointed on probation for two years. Furthermore, the appointment letter did not indicate that he was being appointed against the reserved category post. The petitioner then commenced working with the first respondent and was teaching physical education to the students from the 5th to 10th standard. Respondent Nos.3 to 5 informed first respondent that the appointment of the petitioner was not approved as he was a trained graduate and for being appointed as a teacher for physical training, 3 the candidate is required to be qualified only as an under graduate trained teacher. The respondent No.1 on 12th August, 1999 directed the petitioner to submit an undertaking, agreeing to his appointment on the under graduate scale in view of the objections raised by respondent Nos.3 to 5. The petitioner, therefore, was appointed on the under graduate scale after he submitted the undertaking. 4. On 18th January, 2000, the petitioner’s services were approved on the under graduate scale for the academic year 1999-2000 only. On 27th March, 2000, the respondent Nos.1 and 2 informed the petitioner that services would be w.e.f. 30th April, 2000 on the ground of efflux of time. Left with no recourse, on 10th June, 2000, the petitioner submitted an undertaking as directed by respondent Nos.1 and 2 that he was willing to be continued on the under graduate scale. It appears that thereafter respondent Nos.3 to 5 rejected the Appeal preferred by respondent Nos.1 and 2 on two grounds, firstly, that the petitioner was not qualified since he was a trained graduate and 4 secondly, that there was a back log for the reserved category posts despite which he was appointed from the open category. It appears that from 28th September, 2000, the petitioner was appointed as a ‘Shikshan Sevak’ as the approval for his appointment as an Assistant Teacher had been refused. The respondent Nos.1 and 2 submitted a proposal again for the appointment of the petitioner as an ‘Assistant Teacher for Physical Education’. The respondent No.3 rejected the application by reiterating its earlier decision refusing the approval. The respondent Nos.1 and 2 then submitted a representation to respondent No.3 supporting the petitioner that there was no back log of reserved category posts and that the petitioner was fully qualified, as required in law, for being appointed as a teacher for physical education. Respondent No.3 once again refused the approval. Ultimately the respondent Nos.1 and 2 terminated the services of the petitioner w.e.f. 30th March, 2002. The petitioner then preferred the aforesaid Appeal before the School Tribunal, Mumbai. 5 5. By the order of 29th June, 2004, the School Tribunal dismissed the Appeal on the ground that the approval granted for the petitioner’s appointment as a ‘Assistant Teacher’ was temporary. The School Tribunal also concluded that there was a back log of reserved category posts and therefore the petitioner’s appointment was rightly not approved. Furthermore, the School Tribunal was of the view that the appointment of the petitioner on the trained under graduate scale, despite his qualification of being a trained graduate, was illegal. 6. Mr. Dighe, the learned Advocate for the petitioner, points out that the School Tribunal has erred in dismissing the Appeal. According to him the petitioner was fully qualified to be appointed as a ‘Assistant Teacher’ and had been appointed as he fulfilled the criteria that were mentioned in the advertisement issued by respondent No.1. He submits that the School Tribunal has ignored the fact that the advertisement was issued by respondent Nos.1 and 2 only after it was approved by respondent No.3. The 6 question of the petitioner having been appointed contrary to the advertisement does not arise, according to the learned Advocate. He submits that the petitioner’s qualification of B.Sc., B.P.Ed. permitted the respondent Nos.1 and 2-Management to appoint him as a ‘Assistant Teacher for Physical Education’. He submits that it was only because the respondent- Management insisted on the petitioner being appointed as an ‘under graduate trained teacher’, that he accepted the appointment after his recruitment as a ‘trained graduate teacher’. Mr. Dighe submits that it is permissible for a school to appoint a trained graduate teacher in the scale of untrained teachers so long as the number does not exceed 25%. The learned Advocate further brings to my notice the Roster maintained by the School which indicates that there was no back log at all and that the post of ‘Assistant Teacher for Physical Education’ is a solitary post. He further points out that there can be no reservation beyond 34%, as held by this Court and as provided in the Maharashtra Employees of Private Schools 7 (Conditions of Services) Act, 1977 and Rules 1981 framed thereunder (for short “MEPS Act and Rules). 7. In my opinion, the School Tribunal, Mumbai has erred in dismissing the Appeal. A perusal of the advertisement issued on 20th April, 1999 in the daily newspaper, “Maharashtra Times”, indicates that the School had advertised the post of an Assistant Teacher for Physical Education who had the qualifications of B.A., B.P.Ed. The advertisement stipulated that since there was only one post, it was for the candidates from the open category. Reserved category candidates were sought for the post of ‘Peon’ in the same advertisement. Undisputedly this advertisement was issued by the Management only after it was approved by the Education Officer. Thus, there can be no doubt that the post which was advertised by respondent Nos.1 and 2 for an ‘Assistant Teacher’ having the qualifications of B.A., B.P.Ed. for teaching physical education in the “middle school” was for candidates from the open category. There is no dispute that the petitioner was qualified with the degrees of B.Sc., 8 B.P.Ed., which is equivalent to B.A., B.P.Ed. Therefore, the petitioner’s appointment to that post with the qualifications that he had attained cannot be said to be illegal. Furthermore, since the advertisement did not indicate that the petitioner was being appointed against a reserved category post, the petitioner was issued an appointment letter accordingly on 7th June, 1999. The appointment letter stipulated that the petitioner was appointed as an ‘Assistant Teacher’ in the pay scale of Rs. 5,500-175-9000 w.e.f. 14th June, 1999 on probation for a period of two years. There was no indication in the appointment letter that the petitioner was being appointed temporarily, till a suitable candidate from the reserved category was appointed. 8. Surprisingly, despite having the qualifications and the petitioner having been appointed in a clear vacancy, the Education Officer did not grant approval to his appointment. One of the reasons for not granting approval was that the petitioner did not possess the D.Ed. qualification. A perusal of the 9 provisions of the MEPS Act and the Rules framed thereunder indicate that such a qualification is not necessary for a person who is appointed in the secondary school for teaching Physical Education. The D.Ed. qualification is required only when a teacher is appointed in the primary school. Admittedly the petitioner was teaching students from the 5th to 10th standards and, therefore, was a secondary school teacher. 9. Therefore, this reason for not granting approval is unsustainable. 10. The second reason for not granting approval was that there was a back log of posts for persons from the reserved category. The advertisement published and the appointment letter issued to the petitioner did not make any mention of the fact that the petitioner was being appointed to a post where a reserved category candidate ought to have been appointed and/or that his appointment was subject to a suitable candidate from the reserved category being 10 found. The appointment was against a clear vacancy for the open category post. Therefore this ground for refusing the approval is also unsustainable. 11. Mr. Vanarse, the learned AGP for the respondent- State, tried to submit that there was a back log of the posts available in the school by placing reliance on the affidavit filed by the Deputy Education Inspector. It appears from the affidavit that the Education Inspector has ignored the fact that his office had approved the advertisement issued by the respondent Nos.1 & 2-Management. Furthermore, the affidavit discloses that the Management has made no efforts to fill posts for the S.T., N.T.(D.) and N.T. (B.) categories due to which there was a back log. Undoubtedly this back log could not have been considered while deciding whether to grant approval to the petitioner’s appointment to the post of Assistant Teacher for Physical Education which was a single isolated post. Therefore, the question of there being any back log does not arises. Furthermore, a perusal of the Roster indicates that the reservation in the 11 school is 34%, as necessary under the MEPS Act and Rules and in accordance with the judgment in the case of Writ Petition No.4747 of 2005 between Smt. Hira Shivaji Khalche vs. The State of Maharashtra & Ors. and other connected Writ Petitions decided on 15 th September, 2005 by the Division Bench of this Court. 12. The contention of Mr. Vanarse, the learned AGP, that the petitioner was not qualified since a qualification required for the post was S.S.C., C.P.Ed. is also without merit. After the enactment of the MEPS Act, the question of a person who is being appointed as an ‘Assistant Teacher for Physical Education’ holding the qualification of S.S.C., C.P.Ed. does not arise. The MEPS Act and the Rules framed thereunder clearly mention that a person who is being appointed as an Assistant Teacher for Physical Education must have the degrees of B.A., B.P.Ed. The qualification of B.Sc., B.P.Ed. is equivalent to the same and, therefore, the petitioner was qualified for the post. Furthermore, a person cannot obtain the 12 qualification of B.P.Ed. without having a basic graduation degree. 13. It is apparent from the record that the petitioner chose to continue in employment as an ‘under graduate trained teacher’ and thereafter as a ‘Shikshan Sevak’, being left with no other alternative except termination of his services. In fact, the petitioner ought to have been confirmed after completion of two years of his probation period as there does not appear to be any constraint in terms of Section 5(3) of the MEPS Act. In my view, therefore, the Writ Petition deserves to be allowed. 14. In any event, the respondent Nos.1 and 2 had illegally terminated the services of the petitioner. It is now well settled in view of the judgment of the Full Bench of this Court in the case of St. Ulai High School & Anr. vs. Devendraprasad Jagannath Singh & Anr. (supra), that the services of a teacher cannot be terminated only on the ground that approval to his appointment was not accorded by the Education Officer. 13 The Full Bench has held that approval was necessary only for payment of the grant. 15. Rule made absolute in terms of prayer clause (a). 16. No orders as to costs.