( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 771 OF 1991 Laxman s/o Maroti Turukmane, R/o Kahakar (Bk), Post Kendra, Tq. Hingoli, Dist. Parbhani. PETITIONER VERSUS 1. The State of Maharashtra, through Secretary of Education Department, Mantralaya, Bombay. 2. The Secretary of the Maharashtra Shikshan Prasarak Mandal, Lakh, Tq. Hingoli, District Parbhani. 3. The Education Officer, Zilla Parishad, Parbhani. 4. The Head Master, Madhumati Vidyalaya, Lakh, Tq. Hingoli, Dist. Parbhani. 5. Shri Ghadhe B.P.Ed. R/o Madhumati Vidyalaya, Lakh, Tq. Hingoli, Dist. Parbhani RESPONDENTS ..... Mr. M.P. More, advocate for the petitioner. Mr. N.H. Borade, AGP for respondents No. 1/State. Mr. P.K. Joshi, advocate for respondents No. 2 and 4. Mr. M.B. Bharaswadkar, advocate for respondent No. 5. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 12th January, 2010] ( 2 ) ORAL JUDGEMENT : 1. Challenge in this petition is to judgement and order rendered by the School Tribunal, Aurangabad, in an appeal (Appeal No. 75/1988-M). By the impugned order, the petitioner’s appeal was turn down by the School Tribunal. He had sought reinstatement and other benefits by filing the appeal against alleged illegal termination of his services. 2. The petitioner’s case was that he is B.A. B.P.Ed. and is member of Scheduled Caste being “Mahar” and was eligible for appointment to the post of Assistant Teacher. He was appointed initially on 20th June, 1986 against clear and permanent vacancy as Assistant Teacher. He joined the services of the respondent No.2 as Assistant Teacher. He completed two years’ service as Assistant Teacher and, therefore, could be deemed as permanent employee in view of section 5 (2) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short, “the MEPS Act”). He was, however, terminated from ( 3 ) service by order dated 30-04-1988 and was not allowed to work further. He, therefore, urged for reinstatement. 3. The respondents No. 2 to 4 resisted the appeal. Case of the Management was that the petitioner was temporary employee and had not worked for continuous period of two years. It was asserted that the petitioner was appointed as an Assistant Teacher in the reserved vacancy meant for Scheduled Caste category. It was contended that he had worked with some breaks in the service. It was further contended that he was not duly qualified for appointment as Assistant Teacher. They further submitted that the termination of the service on 30-04-1988 was due to efflux of time and, therefore, there was no need to interfere with the termination order. 4. The respondent No. 5 is appointed subsequently and joined as party. The School Tribunal dismissed the appeal preferred by the petitioner on the ground that he was not duly qualified for the appointment as Assistant Teacher. The School Tribunal held that the qualification ( 4 ) as B.P.Ed. was not equivalent to D.Ed. (Primary) or B.Ed. It is for such reason that the School Tribunal dismissed the appeal. Otherwise the School Tribunal found that the petitioner had continuously worked for more than two years within three academic years from 20-01-1986 to 30-04-1988 prior to his termination. 5. Heard learned counsel for the parties and learned A.G.P. 6. The question for determination is whether the petitioner could be regarded as non-qualified person for the reason that he was having B.P.Ed. degree besides being a graduate. The copy of appointment letter reveals that he was appointed for the first time on 20-01-1986. First appointment letter (Exh-A) shows that it was not an appointment for a particular period as such. Nor the tenure of appointment was otherwise shown in the letter. The appointment letter shows that the petitioner was appointed w.e.f. 23-01-1986 as an Assistant Teacher in the then available scale of pay as sanctioned by the Government from time to time. It has been stated, ( 5 ) however, that the appointment was purely for the academic year and subject to approval by the Education Officer. In other words, it was not a fixed period appointment. The next appointment letter (Exh-B) purports to show that he was again appointed on the post of Assistant Teacher w.e.f. 01-07-1987. There is no dispute about the fact that the period of next appointment was upto 30-04-1988. He did work uptill that period. The petitioner has placed on record a copy of approval letter issued by the Education Officer on 08-03-1986 (marked “X”). On perusal of the approval letter, it is amply clear that the proposal was sent by the Head Master of the school on 30-06-1986 and the approval for appointment of the petitioner was granted w.e.f. 23-01-1986. In the column of remarks, it is mentioned : “Approved against clear vacancy till academic year 1985-86.” The entry in the column No. 3 shows that the appointment of the petitioner was approved as “Physical Teacher”. His educational qualification as B.A. B.P.Ed. is also ( 6 ) stated in the approval letter. Obviously, his educational qualification was known to the Management and was communicated to the Education Officer while making request for approval to the appointment. Thus, he was appointed as Physical Teacher for the purpose of which he was duly qualified because of having completed graduation in Physical Education course. 7. The petitioner has relied on Government Resolution dated 14-05-1987 whereby the Assistant Teachers having B.P.Ed. qualification were directed to be protected. He has also placed on record copy of Government Resolution dated 04-07-1973 (Exh-F) whereby the Government had directed to treat the graduates with degree of Bachelor in Physical Education (B.P.Ed.) of the Marathwada University as trained graduates on par with other candidates for the purpose of promotion, etc. As stated before, the petitioner was appointed as Physical Teacher and, therefore, it could not be said that he did not possess due qualification. If his service period is counted from 23-01-1986 till 30-04-1988, then it will have to be said that he had ( 7 ) completed more than two years’ period and, therefore, was entitled to seek protection under section 5 (2) of the MEPS Act. 8. For a moment, assuming that the appointment of the petitioner was not done by following due procedure, then also, it is difficult to say that he should not have claimed benefit of permanency. This Court in “Hindi Vidyalaya Bombay vs. Presiding Officer, School Tribunal, Mumbai and others” 2007 (6) Mh.L.J. 563, held that the Management can not take advantage of its own wrong in contending that no procedure was followed in appointing a member of the staff. Non-approval to such post also does not create an embargo either on the Management to make him permanent or such person to claim permanency. It is further held that provisions of section 5 (2) of the MEPS Act confer unfettered right on an employee to claim permanency having fulfilled all the conditions contemplated by the Act and the Rules. 9. Considering the legal position, the petitioner ( 8 ) could not have been removed from service without following due procedure as envisaged in Rules 36 and 37 of the MEPS Rules. The impugned order of termination is erroneous, unsustainable and liable to be quashed. 10. The counsel for the respondents No. 2 to 4 would submit that there is practical difficulty in reinstatement of the petitioner because already, the post was filled up and presently, the respondent No. 5 is working on the post. Mr. More, learned counsel for the petitioner, would submit, however, that the petitioner may be granted all incidental benefits and he is ready to give up the claim for backwages i.e. the arrears of the pay. The practical difficulty of the Management cannot be considered when it is found that the termination of the petitioner’s services was found illegal. It may be also mentioned that the petitioner failed to bring the relevant instructions of the Government and the notification to the notice of the School Tribunal. He himself is not free from blame of improper presentation of the claim before the School Tribunal. For this reason also, the denial of backwages ( 9 ) is proper. 11. Considering the foregoing discussion and the reasons, I have no hesitation in holding that the impugned judgement and order of the School Tribunal is arbitrary and improper. Hence, the petition is allowed. The impugned judgement is set aside. The petitioner’s appeal be deemed as allowed and the respondents No. 2 to 4 are directed to reinstate him in the service as an Assistant Teacher, within period of four weeks. The petitioner shall be entitled to claim continuity of service and the incidental benefits arising out the service on account of such reinstatement. However, he will not be entitled to claim the backwages which are given up. No costs. Rule is made absolute accordingly. 12. In view of disposal of the writ petition, civil application No. 9776/2007 stands disposed of. [ V.R. KINGAONKAR ] JUDGE NPJ/wp771-91 ( 10 )