( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 598 OF 2002 1. Dnyan Mata Primary School, Sangamner, Tq. Sangamner, District Ahmednagar, through its Principal. 2. P.J.S. Society, Saint Wincent High School, Saint Wincent Street, Pune, through its Secretary. PETITIONERS VERSUS 1. Manisha Ashok Upare, R/o Indiranagar, Tq. Sangamner, Dist. Ahmednagar. 2. Administrative Officer, Municipal School Board, Sangamner Municipality, Sangamner, Tq. Sangamner, District Ahmednagar. 3. The State of Maharashtra RESPONDENTS ..... Mr. S.V. Adwant, advocate for the petitioners. Mr. S.V. Natu, advocate for the respondent No.1. Mr. V.S. Bedre, advocate for the respondent No. 2. Mr. D.V. Tele, AGP for the respondent No. 3/State. ..... WITH WRIT PETITION NO. 599 OF 2002 1. Dnyan Mata Primary School, ( 2 ) Sangamner, Tq. Sangamner, Dist. Ahmednagar, through its Principal. 2. P.J.S. Society, Saint Wincent High School, Saint Wincent Street, Pune, though its Secretary. PETITIONERS VERSUS 1. Raju s/o Nivrutti Shete, R/o Sukewadi, Tq. Sangamner, District Ahmednagar. 2. Administrative Officer, Municipal School Board, Sangamner Municipality, Sangamner, Tq. Sangamner, Dist. Ahmednagar. 3. The State of Maharashtra RESPONDENTS ..... Mr. S.V. Adwant, advocate for the petitioners. Mr. S.V. Natu, advocate for the respondent No.1. Mr. V.S. Bedre, advocate for the respondent No. 2. Mr. D.V. Tele, AGP for the respondent No. 3. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 23rd June, 2009] ORAL JUDGEMENT : 1. By this common judgement, both these petitions are being disposed of together in as much as identical ( 3 ) questions of law and fact are involved therein. 2. The petitioner is an unaided private educational institution which runs a primary school. The petitioner runs two (2) sections of the primary school including primary school at level I and primary school at level II. The primary section at level II consists of classes from 5th to 7th standard. There is no dispute about the fact that respondent Manisha Upare was appointed as an Assistant Teacher vide appointment order dated 01-06-1997 by the petitioner. She possesses B.A. B.Ed. Qualification. Her initial appointment was on probation. She was being given consolidated salary. Respondent Raju Shete was appointed on 11-08-1993 as an Assistant Teacher in the primary English medium school of the petitioner. His appointment too was on consolidated pay of Rs. 1000/- p.m. He is B.A. B.Ed. (Physical Education). There is no dispute about the fact that services of respondent Manisha were terminated vide order dated 02-08-2000 and services of respondent Raju were terminated vide the same order of the same date on the ground that they were not qualified to work as Assistant Teachers. The Management of the petitioner ( 4 ) informed them that their services were not required in as much as they were not qualified trained teachers. The Education Officer also declined to approve their continuation in the service. 3. Both the respondents i.e. Manisha and Raju alleged that their continuous service since 1993 onwards could not be abruptly terminated. They contended that they were duly qualified to work as Assistant Teacher in the primary school of the petitioner. They asserted that the termination order was bad in law. They filed separate appeals bearing appeal No. 79/2000 and appeal No. 81/2000 before the School Tribunal. The learned Presiding Officer of the School Tribunal held that both the respondents were illegally terminated by the Management of the petitioner. The learned Presiding Officer of the School Tribunal came to the conclusion that both these respondents were eligible to continue on post of Assistant Teacher. Their appeals were accordingly allowed. 4. Heard learned counsel for the parties. ( 5 ) 5. Core issue involved in both these petitions is whether the respondents or either of them is disqualified to work as Assistant Teacher and, therefore, the termination of their services could be justified and as such, the impugned judgements rendered by the School Tribunal are liable to be interfered with. 6. Before I proceed to consider the rival contentions, it would be necessary to examine the scheme of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the MEPS Act”). The scheme of the MEPS Act may be briefly noticed. The preamble of the Act reads thus : “WHEREAS, it is expedient to regulate the recruitment and conditions of service of employees in certain private schools in the State, with a view to providing such employees security and stability of service to enable them to discharge their duties towards the pupils and their guardians in particular, and the ( 6 ) institution and the society in general, effectively and efficiently; AND WHEREAS, it is further expedient in the public interest to lay down the duties and functions of such employees with a view to ensuring that they become accountable to the Management and contribute their mite for improving the standard of education; AND WHEREAS, it is also necessary to make certain supplemental, incidental and consequential provisions; It is hereby enacted in the Twenty-eighth year of the Republic of India as follows :--” The Act was to come in force on such date as the State Government might by Notification in the Official Gazette, decide to appoint. It is not in dispute that the Act came into force with effect from July 15, 1981 which was “appointed date” as defined in clause (1) of section 2. Clause (6) of section 2 defines “Director” and it reads thus : “Director” means the Director of Education or ( 7 ) the Director of Technical education, as the case may be, appointed as such by the State Government.” “Employee” is defined as any member of teaching and non-teaching staff of a recognized school. “Management” is defined in clause (12) thus : “Management” in relation to a school, means :- (a) in the case of a school administered by the State Government, the Department; (b) in the case of a school administered by a local authority, that local authority; and (c) in any other case, the person or body of persons, whether incorporated or not and by whatever name called, administering such school”. The terms “private school” and “school” have been defined in clauses (20) and (24) of section 2 respectively and they read as under : (20) “private school” means a recognized school ( 8 ) established or administered by a Management, other than the Government or a local authority”. (24) “school” means a primary school, secondary school, or higher secondary school, or any part of any such school, a Junior College of Education, or any other institution or part thereof which imparts education or training below the degree level including any institution which imparts technical or vocational education.” The term “recognized” is defined in clause (21) of section 2 as recognized by the Director or an officer authorized by him or by the State Board. 7. Section 3 declares that the provisions of the Act “shall apply to all private schools in the State of Maharashtra”, whether receiving any grant-in-aid from the State Government or not. Section 4 prescribes terms and conditions of service of employees of private schools. Section 5 lays down obligations of management of private schools. Section 8 requires the State Government to ( 9 ) constitute one or more Tribunals to be called “School Tribunals” and defines jurisdiction of each Tribunal. Section 9 confers right of appeal to Tribunal by employees of private schools. Section 10 deals with powers and procedure of the Tribunal. Under section 11, the Tribunal can issue directions and grant appropriate relief to the persons aggrieved. Section 12 makes the decision of the Tribunal final and binding. Section 13 imposes penalty on management for failure to comply with Tribunal’s order. Under section 16, the State Government is empowered to make Rules for carrying out the purposes of the Act. 8. In exercise of the powers conferred under the Act, the State of Maharashtra framed Rules known as “The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981. They inter alia, provide qualifications, appointment of teaching staff, maintenance of seniority list and other matters connected with service conditions of employees. They also lay down procedure for holding inquiries and imposition of penalties. 9. A plain reading of section 5 (2) of the MEPS Act ( 10 ) would make it amply clear that every person appointed to fill up a permanent vacancy would be on probation for a period of two (2) years. He must be deemed to have been confirmed after completion of the period of two (2) years subject to the provisions of sub-sections (3) and (4) of section 5. In the present context, sub-sections (3) and (4) of section 5 would not come into play. The respondents – Manisha and Raju thus acquired deemed permanency in view of the deeming effect of sub-section (2) of section 5 of the MEPS Act. 10. The qualifications required for manning post of “Assistant Teacher” in a primary school are enumerated in Schedule-B. The note below sub-rule (1) of Schedule-B shows that a person holding a diploma in education shall be qualified to teach standards 1st to 4th only notwithstanding anything contained in the earlier provisions. It is quite clear that only those who possess D.Ed. or equivalent qualification are eligible for appointment as Assistant Teacher to the level I of the primary school. There is nothing on record to show that the respondents – Manisha and Raju were appointed ( 11 ) specifically to teach the students of 1st to 5th standard. In “Kondiba Dattarao Mirashe v. State of Maharashtra and others” 2003 (2) Mh.L.J. 432, this Court held that in respect of 5th to 7th standards, the posts of the teachers should be sanctioned in ratio 1:3 per class, that out of every four (4) sanctioned teachers, first three (3) teachers should possess educational qualification of H.S.C. And D.Ed. and fourth teacher should be a graduate with B.Ed./D.Ed. Accordingly, 25% posts of the teacher were converted from H.S.C. D.Ed. to graduate plus D.Ed./B.Ed. And they were given higher pay scale in the two (2) stages. The policy of the Government is reflected in Government Resolution dated 14-11-1979 in this behalf. 11. So far as respondent Raju is concerned, Mr. Adwant would submit with little vehemence that the appeal memo before the School Tribunal did not show his eligibility to teach Hindi as language. The learned advocate for the respondent – Raju has placed on record a xerox copy of the degree certificate which shows that he is B.A. B.Ed. (Physical Education) and Hindi was also a ( 12 ) subject of his education. Thus, it is amply clear that respondent Raju could work as Assistant Teacher for classes 5th to 7th i.e. at the level II of the primary school section. It is true that he had not made any categorical statement in the appeal memo before School Tribunal about such eligibility. Still, however, it cannot be overlooked that he must have produced relevant educational qualification record including the copies of the degree certificates when he was appointed by the petitioner. He was subsequently conferred with the degree of B.Ed. (Physical Education) in 1994 after one year of the appointment. If this fact was known, then the petitioner could have verified the record. In the appeal memo before the School Tribunal, it has been categorically stated by respondent Raju that he is B.A. B.P.Ed. The termination order was issued on the ground that he was not D.Ed. The copy of the termination order dated 22-08-2000 would show that it was within the knowledge of the petitioner that respondent Raju was B.A. B.P.Ed. It is so stated in the notice of termination itself. Obviously, now it cannot be said that such a fact was not within the knowledge of the petitioner and if there was any doubt ( 13 ) entertained by the petitioner, respondent Raju could be called upon to produce the concerned B.Ed. (Physical Education) or B.P.Ed. degree for verification. 12. In “Tukaram Tryambak Chaudhari and others v. State of Maharashtra and others” (2004 B.C.I. 422) (writ petition Nos. 4632, 4325, 4645, 5157, 5160, 5166, 5600, 5684, 5685, 5824, 5963, 6150, 6481, 6605 of 1999 with writ petition Nos. 6472, 6695 of 2000, with writ petition Nos. 3323, 3340, 3553, 3564 of 2002 with writ petition No. 8382 of 2003), a Division Bench of this Court held that teachers who possess B.A./B.Sc. And B.Ed. qualifications are duly qualified and are eligible to continue to receive their salary as trained teachers from date on which they were appointed alongwith all consequential benefits. The dictum in case of “Tukaram Tryambak Chaudhari and others” (supra) is duly approved and confirmed by a Division Bench of the Apex Court in “State of Maharashtra and others v. Tukaram Tryambak Chaudhari and others” 2007 (2) ALL MR 933. The Apex Court held that Full Bench judgement of this Court in “Jayashree Sunil Chavan v. ( 14 ) State of Maharashtra” 2000 (3) ALL MR 465 : 2000 (3) Mah.L.J. 605, did not govern the issue regarding eligibility of the B.A./B.Sc. and B.Ed. Or B.A./B.Sc. and B.Ed. (Physical Education) teachers appointed to conduct classes upto 7th standard. It is observed that the Government Resolution dated 14-11-1979 was not duly noticed by the Full Bench of this Court in case of “Jayashree Sunil Chavan” (supra) and, therefore, the decision rendered in “Kondiba’s (supra) case was quite sustainable. 13. In “Punamchand Khanderao Varute v. Dy. Director of Education and others”, a Division Bench of this Court in writ petition No. 2235 of 2005, held that B.Ed. (Physical Education) degree is sufficient after 1973 as qualification for appointment as graduate teacher for 5th to 7th standards. The learned counsel for the petitioners referred to “Smt. Susheela Sadashiv Mande v. Secretary, Latte Education Society, Sangli and others” 2008 (4) Mh. L.J. 667, “Shailaja Ashokrao Walse v. State of Maharashtra and others” 2000 (1) BOM.C.R. 18 and “Priyadarshini ( 15 ) Education Trust and others v. Ratis (Rafia) Bano d/o Abdul Rasheed and others” 2007 (6) Mh.L.J. 667. There is no duality of opinion about the proposition that only B.A. B.Ed. Qualification would not be permissible criterion in case of appointment of Assistant Teacher for primary section level “I” of the school. The question involved in the present petition is whether the respondents – Manisha and Raju could be terminated because they were not qualified, particularly, when the petitioner school runs classes 5th to 7th and now, even upto 10th standard. Mr. Adwant would submit that respondents Manisha and Raju never claimed that they were teaching the students of 5th to 7th classes and as such, such a claim is impermissible. I find it difficult to countenance the argument. The classes from 5th to 7th standards were available to the petitioner school. The services of the concerned teachers could be assigned for such classes in respect of which they were eligible. There is no reason to assume that they were not being allotted work to impart teaching to the classes from 5th to 7th standards. Moreover, the petitioners did not lead any evidence to show as to which ( 16 ) of the classes were assigned to said respondents and why their services were not taken for imparting education to the 5th to 7th standard students of level (II) of the primary school. 14. For the reasons aforestated, I find it difficult to locate any serious infirmity in the impugned judgements rendered by the School Tribunal. Hence, there is no merit in the petitions. Both writ petitions are dismissed. Rule is discharged accordingly. No costs. 15. In view of dismissal of writ petitions, the civil application No. 4648/2007 (in writ petition No. 599/2002) does not survive and hence, stands dismissed accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/WP598-02-599-02