1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1205 OF 2008 Devidas S/o Ramdas Rane } Age : 45 Years, Occ. : Nil, } R/o : G.No. 61, 16-B/69, } Kolhenagar, Jalgaon, } Dist. : Jalgaon. } .... PETITIONER V E R S U S 1. The Chairman, } Gramin Shikshan Sanstha } Adarsha Vidhyalaya and } Kanishta Mahavidyalaya, } Kanalda, Tq. & Dist. Jalgaon. } 2. The Secretary, } Gramin Shikshan Sanstha } Adarsha Vidhyalaya and } Kanishta Mahavidyalaya, } Kanalda, Tq. & Dist. Jalgaon. } 3. The Principal } .... RESPONDENTS Adarsha Vidhyalaya and } Kanishta Mahavidyalaya, } Kanalda, Tq. & Dist. Jalgaon. } 4. The Deputy Director of } Education, Nashik Region, } Nashik. } 5. Mrs. Pratibha Pitambar Badgujar Age : Major, Occ. : } 2 R/o : Plot No. 2811, New Ajintha } Housing Society, Behind } Municipal Stop, Ratnanand Nagar, } Tq. & Dist. Jalgaon. } .... RESPONDENTS Mr. S.P.Shah, Advocate for Petitioner. Mrs. V.A. Shinde, A.G.P. for Respondent no. 4. Miss. Surekha Mahajan, Advocate for Resp.Nos. 1 to 3 & 5. [ CORAM : S.S.SHINDE, J. ] DATE : 04/09/2009 JUDGMENT : 1. Rule. Rule returnable forthwith. Heard with the consent of the parties. 2. This Writ Petition is filed challenging the Judgment and Order passed by the Presiding Officer, School Tribunal, Nashik region, Nashik in Appeal No. JAL/48/2000 dated 9/10/2006. 3. The back-ground facts of the case are as under. Respondent no. 1 is Gramin Shikshan Sanstha, which is duly registered. Respondent no. 2 is the Secretary of said Sanstha. Respondent no. 3 is the Principal of Adarsha Vidyalaya and Jr. College, Kanalda run by the respondent – management. Respondent no. 4 is the 3 Dy. Director of Education, who is supervisor, controlling over-all affairs of respondent institute. 4. Petitioner, who is original appellant , who is B.A. , M.A. and belongs to O.B.C. Category, was appointed on 9/8/1992 as a Lecturer in Jr. College. It is the case of the petitioner that his appointment was made on permanent and clear vacancy. However, the respondent – management appointed him for the year 1992-93 and the respondent no. 4 by letter dated 14/12/1993, granted approval for his appointment. By another letter dated 3/6/1993, the petitioner was again came to be appointed for the period from 1993-94 and 1994-95. According to the petitioner, he was appointed on probation of the said period. Respondent no. 4 by his letter dated 30/8/1996, granted approval for the said period. It is further case of the petitioner that the respondent no. 4 by letter dated 16/5/2000, approved his services for the period of 1997-98 and 1998-99 and thus he has completed probation period satisfactorily and became deemed permanent employee of the respondent – management. 5. It is further case of the petitioner that he tried to acquire B.Ed. Qualification in the year 2000. However, he failed in one subject and again appeared in the said examination in March, 2001. On 14/9/2000, respondent no. 3 issued letter and asked him whether he has passed B.Ed. Examination and if he has passed, the 4 said information to be forwarded to the respondent – institute. It is further case of the petitioner that though it was communicated to the respondent – institute that he has already appeared for B.Ed. Examination, without following procedure of law, by letter dated 24/9/2000, the management terminated the services of the petitioner. 6. The petitioner/original appellant filed Appeal No. JAL/48/2000 challenging the Order dated 24/9/2000 terminating his services by the management w.e.f. 29/9/2000. 7. According to the petitioner, said termination was illegal, because he was appointed against a clear vacant post and time to time approval was granted by the respondent no. 1 authority and, therefore, his termination by the management is illegal and, therefore, he prayed that same should be quashed and set aside. 8. Respondent no. 4 herein filed reply before the Member, School Tribunal that the approval was granted for the appointment of appellant/petitioner on condition that he should acquire necessary qualification as early as possible, however, he did not fulfill the said condition. It is further stated that the appellant/petitioner was not possessing the required qualification and, therefore, he was not qualified to be appointed as full time Lecturer and therefore till 30/4/1999 his office granted approval for untrained teacher and 5 thereafter for the year 2000-2001 approval was not granted for the appointment of the appellant. 9. The Presiding Officer, School Tribunal framed necessary points for determination and dismissed Appeal filed by the present petitioner. Hence this Writ Petition. 10. This Court issued notices in the matter in pursuant to receivence of notice by the respondents, they have filed their affidavit in reply before this Court. 11. Learned counsel appearing for the petitioner has brought on record some additional documents by way of filing application to take same on record. Learned counsel appearing for the petitioner submits that the appointment of the petitioner was on clear and permanent vacancy and his services were continued till 2000. It is further submitted that Tribunal failed to consider Rule 6 of M.E.P.S. Rules, 1981 in its proper perspective. It is further submitted that the provisions of Section 5 of M.E.P.S. Act, 1977 are not properly appreciated by the School Tribunal. The School Tribunal failed to appreciate the ratio laid down in reported Judgment in 1997 II, CLR 1036. The Presiding Officer of School Tribunal has not at all explained or mentioned as how the facts of the cases cited are different than the case in hand. It is further submitted that the petitioner having been 6 continued from 1993 to 2000, he was deemed permanent employee as per the provisions of Section 5 of M.E.P.S. Act, 1977. It is further submitted that the respondent no. 4 has granted approval to the appointment of the petitioner time to time. It is further submitted that the petitioner has acquired qualification of B.Ed. in March, 2001 and, therefore, he was qualified for regular appointment. It is further submitted that the petitioner was not an untrained teacher because he acquired successful qualification of B.Ed. in March, 2001. According to learned counsel, on the date of appointment, the petitioner was qualified to be absorbed in the service permanently. 12. It is further submitted that in view of Schedule B to the Maharashtra Employees of Private Schools Rules,, 1981, qualification of Assistant Teacher is prescribed. Learned counsel placed reliance on the additional documents at EXH. F at page 10 and submitted that the Dy. Director of Education, respondent no. 4 herein, has relaxed the qualification while granting approval to the services of the petitioner for the year 1993-94. Therefore, according to the learned counsel, if the concerned authority has granted relaxation in qualification, then, he should be treated as a qualified teacher and, therefore, there was no question of observation by the Member, School Tribunal in paragraph 7 that, “ Admittedly the appellant on the date of his 7 appointment and till the date of his termination of services has not passed B.Ed. More over, tt is not a case of either party that the person possessing required qualification was not available, therefore the Director of Education has relaxed the qualification of the appellant as contemplated under Schedule B (III) (I) (b) (iii) (d) ”. 13. Learned counsel, therefore, would submit that the findings recorded by the School Tribunal mentioned herein above are perverse and contrary to EXH. F of the additional documents at page 10, where the respondent no. 4 has relaxed the condition of qualification. Learned counsel invited my attention to Schedule B (iii) of the Maharashtra Employees of private Schools Rules, 1981 , which reads thus, “ If persons possessing the qualification referred to in clause (a) and (b) are not available, the Director may relax the qualifications on the basis of the merits of each case and the person in whose favour such relaxation is allowed, shall be appointed purely on temporary basis”. 14. Learned counsel invited my attention to the pleadings of 8 the petition, grounds taken therein, annexures to the petition, additional documents , submissions before the School Tribunal and submitted that there is no adjudication by the School Tribunal on the merits of the matter and Tribunal has dismissed Appeal by only adjudicating the preliminary issue holding that the petitioner is not qualified. According to learned counsel, petitioner was granted exemption and, therefore, at the relevant time he was qualified teacher. 15. Learned counsel appearing for the respondent vehemently opposed the Writ Petition and submitted that the services of the petitioner are terminated in the year 2000, thereafter respondent no. 4 is appointed in his place as a permanent employee. According to learned counsel, petitioner was not qualified on the date of termination to be appointed as a permanent employee. Therefore, the School Tribunal has rightly interpreted provisions of Section 5 of the M.E.P.S. Act, 1977 and, therefore, in Writ jurisdiction no interference is warranted. It is further submitted that the Tribunal has rightly dismissed Appeal. The appointment of the petitioner was only for temporary period since he was not qualified, learned counsel would further submit that sufficient leniency was shown to the petitioner and he was told to acquire the qualification, but he failed to acquire the necessary qualification till he was terminated and, therefore, the person who is not duly qualified, could not have been appointed as a permanent employee of the respondent institute. Learned counsel 9 invited my attention to the provisions of Section 5 of M.E.P.S. Act and contended that the said Section contemplates that every permanent vacancy in a private school by the appointment of a person duly qualified, is to be filled in and, therefore, on the date of which petitioner was terminated, he was not qualified teacher and he was rightly terminated from the services of the respondent – institute. Learned counsel at the cost of repetition submitted that the petitioner was appointed on temporary basis year to year and approval was also granted by the authority on year to year basis. Learned counsel further submitted that merely because the petitioner is exempted for a particular year from the requisite qualification, in view of non availability of the qualified person, that would not entitle the petitioner to claim permanency in the service and such person, who is not possessing requisite qualification can not be appointed on the permanent vacancy. Learned counsel submitted that the necessary qualification i.e. B.Ed. was not opposed by the petitioner on the date of termination or prior to that and, therefore, he was rightly terminated from the services. Learned counsel further relied on the averments in the affidavit in reply filed before this Court and submitted that the petition is devoid of any merits and same deserves to be dismissed. 16. I have heard learned counsel for the petitioner, learned counsel for respondent nos. 1 to 3 and 5 and learned A.G.P. for 10 respondent no. 4. I have carefully perused the Judgment and Order passed by the Presiding Officer, School Tribunal. 17. The main point which falls for consideration in this Writ Petition is “ Whether the petitioner was qualified as per the provisions of Section 5 of M.E.P.S. Act, 1977 to absorb him as a permanent employee on the date of termination ”. 18. The Member, School Tribunal has framed necessary points for consideration and specific point was framed i.e. whether the appointment of the appellant was made as per Section 5 of M.E.P.S. Act and Rules thereunder ? The Member, School Tribunal in paragraph 7 has recorded the findings that, on the date of termination, admittedly, appellant was not duly qualified. The Member, School Tribunal has interpreted Sub Section (1) of Section 5 and came to the conclusion that the appointment of the petitioner herein was not as per the provisions of Section 5 of the M.E.P.S. Act and Rules thereunder. The learned Member of School Tribunal has further observed that the appointment of the petitioner can not be termed on probation . Therefore, the Member, School Tribunal has dismissed Appeal filed by the petitioner. 19. The main point, which falls for consideration in this petition is that, merely because respondent no. 4 has relaxed the 11 condition of qualification in approval letter dated 8/3/1994 approving the services of the petitioner on temporary basis for the academic year 1993-94, can be construed as a relaxation in the qualification even for the appointment on permanent basis as contemplated under Section 5 of M.E.P.S. Act, 1977. The point which is raised in this petition is no more res-integra and is covered by the Judgment of this Court in case of Maharashtra Seva Sangh, Solapur and another V/s Shaikh Jamalchand and another reported in 2009 (4) Mh. L.J. 198 and in case of Sawale Motiram Shridhar V/s Maharashtra Seva Sangh, Solapur and others reported in 2009 (4) Mh. L.J. 233. 20. Coming to the first Judgment cited supra, this Court in said Judgment in paragraph 13 has observed, “ A person appointed by relaxing the qualification as contemplated by clause (1) (d) of Part III of Schedule ‘ B ’ is not entitled to claim permanency merely because he was assured by the institution that he would be continued till he acquire the prescribed qualifications. Even if there is such assurance or undertaking given by the institutions, such assurance or undertaking would not bind the institution indefinitely and particularly in the cases where the trained teacher 12 becomes available or the workload is not available. In another reported Judgment cited supra at Sr. No. 2, this Court in paragraph 5 observed thus, “ In the present case, admittedly, the petitioner was not holding the prescribed qualification till he was removed from the services. He acquired the prescribed qualification only after his termination. It is thus clear that though he was appointed on permanent vacancy he can not claim deemed permanency under Section 5 (2) of the MEPS Act ” In said Judgment, this Court further uphold the view taken in earlier Judgment in case of Maharashtra Seva Sangh (cited supra). 21. Therefore, in the instant case also, though the learned counsel for the petitioner tried to contend that relaxation was granted to the petitioner from educational qualifications for the year 1993-94 by the respondent no. 4 and, therefore, his case falls under Schedule B part III clause 1 (d) of the M.E.P.S. Rules (Conditions of Service Rules), 1981 can not be accepted in view of the pronouncement of this Court in cases cited supra. The said approval by the respondent no. 4 and 13 relaxation in the education qualification would held the petitioner only for the temporary also by no stretch of imagination, it may be held that said relaxation or relaxing qualification by respondent no. 4 under Schedule B Part III Clause 1 (d) would enable him for claiming permanancy. 22. It is also relevant to mention that after petitioner was terminated from the services on 14/9/2000, respondent no. 5 is appointed in place of petitioner on permanent basis. Respondent no. 5 was fully qualified on the date of appointment having B.Ed. degree. The petitioner was not possessing B.Ed. degree on the date of termination and respondent no. 5 was available with requisite qualification, has been appointed on permanent basis. The authorities have also granted approval to the case of respondent no. 5. 23. Taking over-all view of the matter, none of the contentions raised by the petitioner in the petition, warrants exercise writ jurisdiction. The findings recorded by the School Tribunal can not be said to be perverse. The School Tribunal has properly interpreted the provisions of Section 5 of M.E.P.S. Act and held that the petitioner was not qualified till he was terminated and, therefore, there was no question of his appointment under Section 5 of the M.E.P.S. Act, 1977. The Member, School Tribunal has rightly rejected the Appeal. No interference is warranted under Writ jurisdiction. Hence, Rule is 14 discharged. Writ Petition is dismissed. Interim relief, if any, stands vacated. Civil Application, if any, stands disposed of in view of disposal of main Writ Petition. [ S.S. SHINDE ] JUDGE knp/WP1205.08