1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8065 OF 2008 The Secretary, Vishal Mumbai Shikshan Prasarak Mandal, C/o. Adarsh Vidyalaya Ors. ...Petitioners. Vs. Mr. Dilip Shankarrao Shiralkar & Ors. ...Respondents. .... Mr. C.J. Sawant, Senior Advocate with Smt.Neeta Karnik for the Petitioners. Mr.Sureshkumar J. Panicker for Respondent No.1. ..... CORAM : DR. D.Y.CHANDRACHUD, J. December 16, 2008. P.C. Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the First Respondent waives service. With the consent of the Learned Counsel and at their request taken up for hearing and final disposal. 2. The School Tribunal by a judgment that is impugned in these proceedings, allowed an appeal instituted by the First Respondent and set aside the appointment of the Second 2 Respondent to the post of Assistant Headmaster. The management, which is before the Court, was directed to appoint the First Respondent to the post of Assistant Headmaster with effect from 1st November 2006. 3. The question as to whether the First Respondent or the Second Respondent would be entitled to lay a claim to the post in question, would depend upon when each of the two Respondents entered into category “C” of Schedule F to the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The First Respondent joined services on 14th July 1978. The First Respondent passed the B.A. Degree examination from the Shivaji University, Kolhapur in 1974 and the B.P.Ed. (Physical) Degree examination conducted by the University of Mumbai in 1977. The Second Respondent was appointed on 19th June 1980. On the date of her appointment, she had already completed her B.A. Degree in 1977 and B.Ed in 1979. The Second Respondent also holds the M.A. Degree qualification. 3 4. Category “C” of Schedule F to the MEPS Rules is to the following effect : “Category C : holders of - M.A./M.Sc./M.Com., B.T./B.Ed., or its equivalent; or B.A.B.T./B.Sc./B.Com., B.T./B.Ed., or its equivalent; or B.A./B.Sc./B.Com. Dip.T.(old two years course); or B.A./B.Sc./B.Com., S.T.C/Dip.Ed./Dip.T. (one year course) with 10 years post S.T.C. etc. service. [B.A. or its equivalent plus Senior Hindi Shikshak Sanad with five years service: or Junior Hindi Shikshak with ten years service after obtaining both academic and training qualifications.]” Category “C” inter alia comprises of candidates holding the B.A., B.Sc. or B.Com. qualification with the BT/B.Ed or its equivalent. The issue before the Court is as to whether the B.Ed (Physical) is equivalent to a B.Ed. Degree. On 14th May 1987, the State Government issued a GR, clause (3) whereof provides that candidates holding inter alia a B.P.Ed. or B.Ed. (Physical) Degree who had been appointed until 1985-86 as Assistant Teachers should be regularized as Physical Education Teachers subject to the terms 4 and conditions spelt out therein. The date of appointment would have to be treated as the initial date of appointment. Clause (4) of the G.R. sets out that such candidates would be equivalent for the purposes of wages, seniority and service conditions to other candidates holding the B.Ed. Degree. On 25th November 1988, the State Government issued another GR. Clause (4) of the GR sets out that from the date of the GR, Arts Teachers and Physical Education Teachers would be included in category “C” of Schedule F. Thus, the effect of clause (4) is that inclusion of such teachers in category “C” was prospective. The words making the application of the GR prospective were sought to be deleted by a subsequent GR dated 9th April 2003 and the provision was reversed once again on 15th July 2004 with the result that clause (4) of the GR dated 25th November 1988 continues to hold the field. Counsel appearing on behalf of the Petitioners submitted that though the First Respondent was appointed in service prior to the Second Respondent, the First Respondent qualified to fall into category “C” on a date subsequent to the Second Respondent and 5 that consequently he was not entitled to promotion to the post of Assistant Headmaster. On the other hand, it has been urged on behalf of the First Respondent that the judgment of the Tribunal is correct, because the GR dated 25th November 1988 was only clarificatory of the position that already existed. Learned Counsel however urged that since the issue was not considered by the Tribunal, the First Respondent will have no objection to a remand of the proceedings to the Tribunal. Learned Counsel for the Petitioner has no objection. In the circumstances, with the consent of the Counsel the petition shall stand disposed of in terms of the following directions: (i) In order to facilitate a fresh decision on all issues which arise in the appeal filed under Section 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, the impugned order of the Tribunal dated 16th August 2008 is set aside; 6 (ii) Appeal No.Mun/61/2007 shall stand restored to the file of the School Tribunal at Mumbai; (iii) Parties shall appear before the School Tribunal for receiving directions on 6th January 2009. The Tribunal is requested to expedite the disposal of the appeal and to endeavour to dispose of the same by 30th April 2009. (iv) All rights and contentions are kept open; (v) Pending the disposal of the proceedings before the School Tribunal, the management is permitted to make an interim working arrangement for the post of Assistant Headmaster. It shall, however, be made clear that this shall only operate an interim arrangement and shall abide by the decision of the Tribunal and shall not create any equity in favour of the person so appointed. 5. In the circumstances, the petition is disposed of in the above terms. No costs. 7 ......