1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1850 OF 2009 ... Sou.Sunita Chandrakant Nagotkar ..Petitioner v/s. State of Maharashtra & ors. ...Respondents ... Mr.A.M.Joshi for the Petitioner. Mrs.S.S.Bhende AGP for the State. Mr.C.G.Gavnekar for Respondents Nos.3 & 4. Mr.G.S.Hiranandani for Respondent No.5. ... CORAM: D.K.DESHMUKH, & K.K.TATED, JJ DATED:10th December, 2009 P.C.: 1. The Petitioner by this petition seeks a direction to the Respondents to upgrade the 2 Petitioner from June, 1990 or from any date thereafter as the court deems fit. So far as this relief is concerned the Petitioner is relying on the letter of the Director of Education dated 9-7-1987. That letter was addressed to the Education Officer, State of Maharashtra. It is stated in that letter that so far as the schools having standards 5th to 7th are concerned, 75% of the teachers are appointed in non-graduate scale and 25% of the teachers are appointed in graduate scale. It is expected that in non-graduate scale, teachers having qualification S.S.C. D.Ed. Would be appointed. But in reality the Management appoints graduate trained teachers in under graduate scale. Some time those who are appointed in non-graduate scale improve their qualification. In these circumstances, it is directed by the Director that when an appointment of a teacher is to be made in the 3 graduate scale in a school having 5th to 7th Standards instead of making appointment by direct recruitment the graduate trained teachers working in non-graduate scale in a school having 5th to 7th Standards should be given up-gradation. Similarly, if there is a vacancy for a graduate teacher in a school having 8th to 10th Standards then instead of making appointment by direct recruitment a graduate trained teacher working in non- graduate scale in that school should be given up-gradation. In other words the letter contemplates the teachers working in the same school being given up-gradation, instead of the management filling in the clear vacancy by direct recruitment. 2. The Petitioner seeks a direction against the Management for implementation of directions contained in this letter. 4 3. The stand of the Management is that the decisions contained in the letter dated 9-7-1987 are contrary to the scheme of the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (hereinafter referred to as the M.E.P.S.Act) and the Rules framed thereunder. Sub-section 1 of Section 3 of the M.E.P.S.Act lays down that the provisions of the Act shall apply to all private schools of the State of Maharashtra whether receiving grant-in-aid from the State Government or not. Sub-Section 1 of Section 5 lays down that the Management shall as soon as possible fill in the prescribed manner every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. Sub-section 2 of Section 5 lays down that every person appointed to the permanent 5 vacancy shall be on probation for a period of two years. It is thus clear from the provisions of Section 5 that the Act contemplates every clear vacancy in a private school to be filled in by direct recruitment. It does not contemplate a clear vacancy in the post of trained teacher to be filled in by any process of up-gradation. If a teacher working in non-graduate scale, having graduate trained qualification is confirmed as permanent teacher in that school, when he is upgraded he will continue to be a permanent teacher, but the law provides that an appointment in a clear vacancy has to be on probation. It is further to be seen that Sub-Rules 3, 4, 7 & 8 of Rule 9 of the Rules framed under the Act are relevant. They reads as under. (3)Unless otherwise provided in these rules for every appointment to 6 be made in a school, for a teaching or a non teaching post, the candidates eligible for appointment and desirous of applying for such post shall make an application in writing giving full details regarding name, address, date of birth, educational and professional qualifications, experience, etc., attaching true copies of the original certificates. It shall not be necessary for candidates other than those belonging to the various sections of backward communities for whom posts are reserved under sub- rule (7) to state their castes in their applications. (4) The age limit for appointment to any post in a school shall be as follows, namely: (a) for an appointment to be made to any post in a primary school, a candidate shall not be less than 18 years of age and more than (28 years) of age, and in the case of candidate belonging to Backward Classes he shall not be more than (33 years) of age; Provided that, upper age-limit may be relaxed in case of women, ex-servicemen and persons having previous experience with the previous permission of the Deputy Director. (b) for an appointment to be made to any post in any school other than primary school, a candidate shall not be below the 7 age of 18 years. (7) The Management shall reserve 34 per cent of the total number of posts of the teaching as well as non- teaching staff for the members of the Scheduled Castes, Scheduled Castes converts to Buddhism, Scheduled Tribes, Denotified Tribes, Nomadic Tribes and other Backward Classes as follows, namely : (a) Scheduled Castes and Scheduled Castes converts to Buddhism 13% (b) Scheduled Tribes including those living outside the specified areas 7% (c) Denotified Tribes and Nomadic Tribes 4% (d) Other Backward Classes 10% (8) For the purpose of filling up the vacancies reserved under sub-rule (7) the Management shall advertise the vacancies in at least one newspaper having wide circulation in the region and also notify the vacancies to the Employment Exchange of the District and to the District Social Welfare Officer (and to the associations or organisations of persons belonging to Backward Classes, by whatever names such associations or organisations are called and which are recognised by Government for the purposes of this sub-rule] requisitioning the names of qualified personnel, if any, registered with them. If it is not possible to fill in the reserved post from amongst candidates, if any, who have applied in response to the 8 advertisement or whose names are recommended by the Employment Exchange or the District Social Welfare Officer [or such associations or organisations as aforesaid] within a period of one month the Management may proceed to fill up the reserved post in accordance with the provisions of sub-rule (9). 4. Perusal of the above quoted provisions of Rule 9 shows that a person seeking appointment against a regular vacancy has to make an application to the Management together with necessary documents. Sub-rule 4 prescribes age limit for making appoint. It is thus clear that if the appointment is to be made by un-gradation, there is no question of there being any application and the candidate may not fulfill the requirements of age which is required by sub-rule 4 of Rule 9. It is thus clear that the letter dated 9-7-1987 has been written by the Director of Education totally ignoring the provisions of 9 the Act as also the provisions of the Rules. Sub-Rule 8 of Rule 9 quoted above requires an advertisement being published for making recruitment. The purpose behind the Law requiring advertisement being given is that it makes known to all persons who are eligible to apply for the post about the existence of the vacancy so that all eligible persons can compete and the students in the school get the best possible tallent for teaching them. If the upgradation is permitted as contemplated by the letter of the Director, it will rule out competition and also may not be in the interest of the students. It is an admitted position that the Respondent-School is receiving grant-in- aid from the State Government. In other words, it is receiving public funds and the teachers working in the school are paid from the public funds and therefore, provisions 10 of Article 14 of the Constitution will be applicable to the appointments that are to be made in such an aided school. One of the primary requirement of Article 14 of the Constitution is that before making appointment a notice should be issued giving wide publicity so that every person who is eligible to compete is given an opportunity to make an application. If the appointments are permitted to be made by up-gradation, in our opinion, it will deny an opportunity to compete to other candidates who may be eligible and qualified. It will also not be in the interest of the students In our opinion, therefore, the scheme which is contained in the letter dated 9-7-1987 apart from being contrary to the provisions of the Act may also be violative of the guarantees contained in Article 14 of the Constitution. In our opinion, therefore, it will not be 11 appropriate for us to issue a writ for implementation of such letter. 5. Second relief claimed in the petition is a direction to the Respondent to place the Petitioner in category C from June, 2007. So far as this relief is concerned, perusal of the provisions of the Rules show that there is a duty cast on every management of the private school to prepare a seniority list as per the Rules, circulate it amongst the teachers and if any objections are received to that list, then those objections are to be forwarded to the Education Officer for decision. In the petition we do not find any averment made that the Management has circulated any seniority list placing the Petitioner in any category. In our opinion, proper remedy of the Petitioner would to be raise an objection to the seniority list as 12 and when such list is circulated by the Management and invoke the jurisdiction of the Education Officer to decide the objection. Therefore, no relief in that regard can be granted to the Petitioner. Petition is, therefore, without any substance. It is rejected. (D.K.DESHMUKH, J.) (K.K.TATED, J.)