-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7965 OF 2009 Amarbahadur Santprasad Yadav & Anr. ..Petitioners. Versus The State of Maharashtra & Ors. ..Respondents. Mr. Surel S. Shah for the petitioner. Ms. Aparna Vhatkar, AGP for respondent nos. 1 & 2. Coram : R. V. MORE, J. Date : April 8, 2010. P. C. : 1. Heard Mr. Surel S. Shah, learned counsel for the petitioners and Ms. Aparna Vhatkar, AGP for respondent nos.1 & 2. Respondent nos. 3 & 4 though served, none appears for them. Learned counsel for the petitioners as well as learned AGP submitted that respondent Nos.3 & 4 are formal parties and their presence is not necessary. Rule. Rule made returnable forthwith by consent. Counsel for the respondents waive notice for the concerned respondents. As short question is involved, petition is taken up for final disposal forthwith by consent. 2. Petitioner no.1 is a B.P.Ed. and petitioner no.2 is B.A.B.Ed by qualifications. Respondent no.3 is an educational institution – trust under the Bombay Public Trusts Act, 1950 which runs respondent no.4 school which is a government recognised and partly aided private secondary school having classes of standard 5 to 10. Initially, -: 2 :- Respondent no. 4 School was granted recognition in the year 2000. The school started with classes 5 to 8 and thereafter by natural growth the school received permission for the divisions of standard 9 to 10. From the year 2006 the school is receiving full grants. 3. The petitioners after getting knowledge about vacancies in respondent no. 4 school made applications in writing for the posts of assistant teacher. Since the trained undergraduate teachers were not available, the petitioners even though were trained graduate teachers, came to be appointed against those vacancies, with effect from 4th June 2002 and 1st July 2005 respectively on probation in the pay scale of 4500-7000. Both the petitioners completed the probation period of two years and therefore in view of section 5(2) of Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977, became deemed permanent employees. 4. It is the case of the petitioners that after completion of probation period of two years, the management orally informed them that the vacancies on which the petitioners are appointed were of trained undergraduate teachers whereas the petitioners are the trained graduate teachers and therefore the petitioners will have to apply for continuation of their services. The petitioners made position clear to respondent nos.3 & 4 that the posts on which they were appointed were of trained undergraduate teachers carrying the pay-scale of 4500-7000 and infact the petitioners were trained graduate teachers, however they -: 3 :- have agreed and accepted to work in the said post carrying D.Ed. scale which was lower than the pay-scale of trained graduate teacher. The management, therefore, obtained undertaking from the petitioners and submitted a proposal to respondent no.2 thereby seeking approval to the appointment of teachers working in the school including the petitioners. Respondent no.2, however, by the impugned order refused the approval to the petitioners’ proposal on the ground that the petitioners are B.P.Ed. and B.A.B.Ed and they have been appointed in the pay-scale of Rs.4500-9000. This order is impugned in the present petition. 5. Mr. Shah, learned counsel for the petitioners relied upon the judgment of learned Single Judge of this Court in the matter of Air India Staff Colony Association-1 v/s. Moreshwar V. Patil & Others reported in 2007(5) BCR 63 and submitted that the impugned order is illegal and respondent no.2 has committed error in refusing to grant approval to the petitioners appointment as Assistant Teachers, i.e., the post of trained undergraduate teacher on the ground that the petitioners are trained graduate teachers. He submitted that respondent no.4 is a secondary school having classes for 5th to 10th standards. He further submitted that 4 posts of trained graduate teachers for standards 8th to 10th are admissible and 4 posts of teachers are sanctioned for 5th to 7th standards out of which one post of trained graduate teacher of B.Ed. -: 4 :- and 3 posts are of trained undergraduate teachers. He submitted that the petitioners though trained graduate teachers were rightly appointed to the post of trained undergraduate teachers and this is perfectly legal. 6. Learned AGP appearing for respondent nos. 1 & 2 could not dispute the factual position that the petitioners were appointed on available undergraduate posts on probation for the period of two years. 7. Having gone through the contents of the petition alongwith annexures thereto and having considered the rival submissions of respective parties, I find that the issue involved in the present petition is covered by the judgment of this Court in the matter of Air India Staff Colony Association (supra). The learned Single Judge in paragraph nos. 12, 13 and 14 of the said judgment observed thus : “12. Schedule B of MEPS Act lays down minimum qualifications of primary teachers and secondary teachers and teachers working in the junior college. A perusal of the aforesaid two schedules indicate that in respect of secondary schools, a person having a qualification of B.A.B.Ed can be appointed in the secondary school. At the same time, it is also mentioned in the said schedule that a person having the qualification of B.A.B.Ed. can be appointed in the Under-Graduate Scale. The pay scale which is payable to Assistant Teacher in the secondary school is given in Schedule C and teacher who is working in the course of undergraduate pay scale is entitled to receive an salary of 1200-2040. 13. The aforesaid provisions reveal that it is possible that a person who is having qualification of B.A.B.Ed at the relevant time may be appointed on the post of undergraduate teacher wherein the pay scale is 1200-2040. Taking into consideration -: 5 :- the said schedule B and C, it can be seen that the submissions made by the learned AGP appearing on behalf of the State that merely because the pay scale which is mentioned in the letter of appointment of the respondent no.1 is shown as 1200-2040, does not mean that he has been appointed in a primary school. The letter of appointment has to read as a whole and the said letter of appointment clearly mentions that provisions of the MEPS Act and revised secondary code are applicable in this case. 14. The respondent nos.2 and 3 have not raised this objection before the School Tribunal where they have made as party respondents. Respondent Nos.2 and 3 had an opportunity to raise this objection before the School Tribunal and they could have mentioned that the respondent no.1 was appointed in the primary section and therefore, the provisions of Section 9 of MEPS Act are not applicable. Though this opportunity was available to the respondent nos. 2 and 3, they have chosen to remain silent and the Tribunal, therefore, has proceeded on the footing that the respondent no.1 was working in the secondary section of the petitioner no.2 school. The petitioners also do not dispute the fact that the respondent no.1 was appointed in the secondary section and he was taking classes VIII to X standard. On the same analysis, therefore, the reliance placed by the respondent nos.2 and 3 of the Full Bench Judgment of this Court in Writ Petition No. 4159/98 dated 5th May, 2005 is misplaced. It is, therefore, apparent that the respondents have proceeded to reject the proposal for approval by treating the respondent no.1 as a teacher who was appointed in the primary section though the material on record clearly establishes the fact that he was appointed in the secondary division of the petitioners’ school. The averments made in the two affidavits which have been filed by the respondent nos.2 and 3 dated 12th December, 2005 and 11th October, 2006 clearly establish, therefore, that the respondent nos.2 and 3 have proceeded on a totally wrong assumption and they apparently came -: 6 :- to the said conclusion that the respondent no.1 was working in a primary school on the basis of the pay scale which is mentioned in the letter of appointment of respondent no.1. As indicated hereinabove, Schedule C to MEPS Act clearly permits a person who is having a qualification of B.A.B.Ed can at a particular point of time be appointed in undergraduate scale as long as any post in the graduate scale is not available. ” 8. This judgment is followed by this Court in an unreported decision dated 15th July 2009 in Writ Petition No. 4628 of 2009. 9. The observations of learned Single Judge in Air India Staff Colony Association (supra) make it abundantly clear that the person having qualification of B.P.Ed/B.A.B.Ed. (trained graduate teacher) can be appointed in undergraduate scale. The petitioners were legally appointed on probation and therefore respondent no.2 could not have rejected their proposal on the ground that they were appointed in the pay scale of undergraduate teachers despite they having qualification of trained graduate teachers. The impugned order is contrary to the Schedule B of MEPS Act and therefore same deserves to be quashed and set aside. The petition therefore succeeds and is made absolute in terms of prayer clause (b). There shall be no order as to costs. (R.V. MORE, J.)