JUDGMENT - D.D. SINHA, J.:---Heard Shri A.P. Deshpande, the learned Counsel for the petitioner. Shri R.K. Deshpande, learned Counsel for the management and Shri K.S. Dhote, learned Counsel for the respondent No. 3, Education Officer. 2.Shri A.P. Deshpande, the learned Counsel contended that at the relevant time the petitioner was working as an Assistant Teacher in the respondent No. 2 school. The said school was/is managed by the respondent No 1. Society, registered under the Societies Act as well as Bombay Public Trust Act. The petitioner was initially appointed as an Assistant teacher on 1-8-1978 in respondent No. 2 school. At the time of appointment, the petitioner's educational qualification were S.S.C., D. Ed. The petitioner had also passed the Pre-University Commerce. The petitioner initially appointed on probation for two years. The petitioner being a trained teacher was deemed confirmed after completion of the period of two years with effect from 1-8-1980. The petitioner wanted to improve his educational qualification and, therefore, made an application to the Headmaster seeking permission to appear for B.A. examination. It is contended by the learned Counsel that the oral permission was granted by the Headmaster to the petitioner to appear for the relevant examination. The petitioner passed B.A. in the year 1981. 3.The petitioner submitted an application to the respondent Nos. 1 and 2 to enter his improved qualifications in his service book i.e. B.A., D.Ed. However, the respondent No. 2 avoided to comply with the legitimate request of the petitioner. The learned Counsel, further, submitted that the petitioner again requested the respondent Nos. 1 and 2 to enter his improved educational qualification as "Graduate" in the service book and further requested to grant him the pay scale of Graduate Teacher in the 25 per cent quota having regard to the seniority. The learned Counsel for the petitioner contended that at the relevant time having regard to the strength of the middle school teachers amongst the graduate teachers working in the school, two graduate teachers were entitled to the pay scale of graduate teacher shown in Part III of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. The total strength of the teachers appointed for Standard V to VIII were 8 and 25 per cent thereof comes to 2. The total strength of the teachers appointed for Standard V to VIII were 8 and 25 per cent thereof comes to 2. Hence two teachers were entitled to receive the pay scale of graduate teachers pursuant to the note appended below Part II of the Rules. 4.The respondent No. 2, Headmaster, by communication dated 21-2-1987 has refused to recognise the educational qualification acquired by the petitioner on the ground that the same were acquired without permission and in breach of relevant rules. It is submitted that being aggrieved by the above referred communication of the respondent No. 2 the petitioner lodged a complaint with the Education Officer and prayed that the respondent Nos. 1 and 2 be directed to recognise the petitioner's improved educational qualifications so also for grant of higher pay scale. The Education Officer, after hearing the petitioner and the Headmaster, decided the matter vide order dated 8-2-1988 and held that the petitioner was a graduate and was entitled to the pay scale of graduate teachers in the 25 per cent quota as per rules. The Education Officer, further, directed the respondent Nos. 1 and 2 to grant higher scale to the petitioner and send the proposal for approval to the office of the Education Officer. The learned Counsel contended that in spite of the said communication by the Education Officer, respondent Nos. 1 and 2 have not granted the higher scale (Grade Scale) to the petitioner. 5.Shri A.P. Deshpande, the learned Counsel for the petitioner contended that the respondent No. 4 is the real brother of the Secretary of the society Shri Pahune. The respondent No. 4 was appointed in the school in the year 1978 as a Laboratory Assistant. The respondent No. 4 improved his qualification while being in service by joining D.Ed. Course as a regular candidate in the year 1982 and passed B.A. Examination in the year 1988. The respondent No. 4 was appointed in the post of Assistant Teacher in the school run by respondent No. 2 in the year 1982. It is contended by the learned Counsel that the petitioner was at the relevant time much senior to the respondent and ought to have granted higher pay scale (Grade Scale) as directed by the Education Officer vide order dated 8-2-1988. However, the respondent Nos. It is contended by the learned Counsel that the petitioner was at the relevant time much senior to the respondent and ought to have granted higher pay scale (Grade Scale) as directed by the Education Officer vide order dated 8-2-1988. However, the respondent Nos. 1 and 2 in order to do favour to the respondent No. 4 again moved the Education Officer for reconsideration of the order dated 8-2-1988. The Education Officer again for the second time heard the petitioner and the Headmaster, though it was pointed out to the Education Officer that the issue in question was already decided by the Education Officer in favour of the petitioner vide order dated 8-2-1988 there is no power to review his own order nor there is any occasion to do so. However, the Education Officer, by order dated 22-3-1990, granted an approval to the payment of Grade Scale to the respondent No. 4 in the 25 per cent quota from 13-2-1989 onwards. Being aggrieved by the same, the petitioner has filed the present petition. 6.The learned Counsel for the petitioner challenged the impugned order basically on two grounds, (i) that the claim of the petitioner for getting the benefit of higher pay scale in 25 per cent quota in view of the improved educational qualification was already considered by the Education Officer after giving appropriate opportunity to the management and the Education Officer vide order dated 8-2-1988 has held that the petitioner was entitled to get the higher pay scale in 25 per cent quota and respondent Nos. 1 and 2 were directed in this regard. It is contended by the learned Counsel that the above referred order of Education Officer has reached finality since the same was not challenged by the management by filing an appeal before the higher authorities. 7.Another ground on which the impugned order was challenged by the petitioner is in view of provisions of Annexure 31 of the Secondary School Code. It is contended that even if it is presumed that the petitioner improved his qualification without following the procedure contemplated under Rule 58.3 or Annexure 31, the management has not taken any action for breach of description. On the other hand, the petitioner was continued in service and, therefore, he is eligible for pay according to his qualification. It is contended that even if it is presumed that the petitioner improved his qualification without following the procedure contemplated under Rule 58.3 or Annexure 31, the management has not taken any action for breach of description. On the other hand, the petitioner was continued in service and, therefore, he is eligible for pay according to his qualification. The learned Counsel, therefore, submitted that the action of the management is wholly illegal and is also not sustainable. 8.Shri R.K. Deshpande, the learned Counsel for the respondent management supported the action of the management and contended that the management was justified is disallowing the claim of the petitioner of higher pay scale in 25 per cent quota. 9.Shri R.K. Deshpande contended that the petitioner admittedly acquired the higher qualification without any permission from the management and, therefore, the action on the part of the petitioner is violative of Rule 58.3 of the Secondary School Code. It is contended by the learned Counsel that in view of Rule 58.3, it was incumbent on the petitioner to apply in writing to the management for seeking permission to obtain higher qualification well in advance and it is only when such permission is granted by the management, the petitioner is entitled to improve or acquire the higher qualification during the tenure of his service. It is submitted that since the petitioner has acquired the higher qualification without any authenticated permission contemplated in Rule 58.3 of the Code, the management was justified in ignoring the claim of the petitioner. 10.The learned Counsel, further, contended that Annexure-31 of the Code takes into its ambit the non-observation of the stipulation in Rule 58.3. It is, further, contended that Annexure-31 was inserted in the Secondary School Code on 27th September, 1971, whereas Rule 58.3 came on the statute book for the first time on 4th of February, 1975 and, therefore, provisions of Annexure-31 are not applicable in the present case. 11.It is contended by the learned Counsel for the management that the re-consideration of the order, dated 8-2-1988 by the Education Officer cannot be said to be illegal since the claim of the respondent No. 4 was required to be considered for the higher pay scale from 25 per cent quota on the basis of improved qualification by the respondent No. 4. The learned Counsel, therefore, contended that the order dated 22-3-1990 passed by the Education Officer by which the approval was granted to the respondent No. 4 is just and proper since earlier order dated 8-2-1988 was passed on the basis of the misrepresentation in regard to the factual position by the petitioner. The petitioner, in the application dated 5-8-1987 stated that he has acquired higher educational qualification by doing the course privately, whereas the petitioner acquired the qualification by joining the regular course. The Education Officer, therefore, justified in re-considering the earlier order dated 8-2-1988. 12.I have considered the contention raised by the respective Counsel. Perused the impugned orders passed by the Education Officer as well as relevant provisions of rules. Before I proceed to consider the factual aspect of the controversy in question, it will be appropriate to consider the relevant provisions applicable in this regard. 13.Chapter III of the Secondary School Code deals with Service Conditions of the staff, records and inspection. Rules 58.3 as well as 72 are the part and parcel of Chapter-III and Annexure-31 is attracted when the higher qualifications are obtained without taking permission, and for considering the eligibility of the employee in the higher pay scale. Rule 72 deals with the breach of Service Conditions. For the purposes of ready reference Rules 58.3, 72 and Annexure 31 are reproduced thus :--- "58.3. Managements may permit teachers to obtain higher or additional qualifications such as B.A., M.A. etc. provided the teacher applies in writing for such a permission well in advance and provided further that the normal work of the school does not suffer by such permission. The teacher so permitted cannot claim as a matter of right any kind of leave for the preparation of the examination. He will, however, be eligible to get the leave due and admissible for the purpose of appearing for the examination." "Breach of Service Condition Rules : 72. If any employee of a school commits a breach of any of the service condition rules, the school authorities will hold an enquiry and if the breach is proved, the school authorities shall be free to warn the employee or to withhold his increment for a period not exceeding a year or to withhold his promotion." "Annexure (31) (Vide Rule 72) --- Eligibility of Higher Pay Scale when the qualifications have been obtained without taking prior permission. If the employee appears for the examination without permission from the management, it is breach of discipline and suitable action can be taken by the management against him. But if he is continued in service after taking such action he will be eligible for pay according to qualifications, provided there is a vacancy of a trained graduate teacher." 14.The petitioner has acquired higher qualification on the basis of oral permission granted by the authorities. However, in view of Rule 58.3 the employee is required to seek prior permission in writing from the management. Rule 58.3 further contemplates that such permission can only be granted if normal work of the school does not suffer. Since petitioner did not obtain necessary permission in writing, the management in view of Rule 72 as well as Annexure 31 was entitled to hold an enquiry against the petitioner and if breach is proved, the Management was entitled to take appropriate action. In the instant case, nothing has been placed on record by the management in order to show that normal work of the school suffered because of acquisition of higher qualification by the petitioner as contemplated in Rule 58.3. Similarly, the management did not hold any enquiry against the petitioner for the breach, if any and did not take any action against the petitioner for the same and petitioner was in fact continued in service. Since management did not take any action against the petitioner for the breach, in view of Annexure-31, and is continued in service, he is entitled to get benefit of Annexue-31, which makes him eligible for pay according to qualification, provided there is a vacancy of a trained graduate teacher. In view of the above referred facts and circumstances, the petitioner was eligible for pay according to qualification and at the relevant time, there was a vacancy of a trained graduate teacher. 15.Rule 58.3 of Secondary School Code is procedural in nature. Rule 72 of the Code entitled the school authorities to hold enquiry and take appropriate action against the employee if he commits breach of any service condition. Rule 72 will have to be read with Annexure-31 of the Code, which protects employee in case employee is continued in service after taking such action for the breach of the management. Rule 72 of the Code entitled the school authorities to hold enquiry and take appropriate action against the employee if he commits breach of any service condition. Rule 72 will have to be read with Annexure-31 of the Code, which protects employee in case employee is continued in service after taking such action for the breach of the management. Taking into consideration the facts and circumstances in the present case and on the backdrop of above referred legal position, the petitioner is entitled to get the benefit of Annexure 31 the Secondary School Code. 16.The petitioner undoubtedly passed B.A. examination in the year 1981. The Management did not take any action against the petitioner in view of Rule 72 as well as Annexure-31 for breach of condition mentioned in Rule 58.3 as well as Annexure-31 and petitioner is continued in service till today. The cumulative effect of above referred rules and Annexure-31 would entitle the petitioner to be eligible for pay according to his qualification. It is not in dispute that at the relevant time qualifications possessed by the petitioner were not requisite qualifications for the purpose of grant of scale of graduate teacher in 25 per cent quota. 17.The contention raised by the respondent regarding the applicability of Annexure 31 in respect of the controversy in question is also misconceived and devoid of substance. As stated above, Rule 58.3 of the Secondary School Code carves out procedure required to be followed by the employee in case, the employee of the institution wants to acquire higher additional qualification while he is in service. If the procedure contemplated under Rule 58.3 is violated by the employee while acquiring the higher qualifications then the action to be taken by the Management against such employee is provided in Rule 72 of the Code. 18.Similarly, Annexure-31 also provides for an action to be taken by the management in case of a breach of discipline by the employee in respect of the procedure contemplated for the purposes of obtaining higher additional qualification. It, further, provides that if such employee is continued in service after taking such action, he will be eligible for pay according to the qualifications, provided there is a vacancy of a trained graduate teacher. Annexure 31 specifically deals with the eligibility of higher pay scale in case of employee who has obtained qualifications without permission. It, further, provides that if such employee is continued in service after taking such action, he will be eligible for pay according to the qualifications, provided there is a vacancy of a trained graduate teacher. Annexure 31 specifically deals with the eligibility of higher pay scale in case of employee who has obtained qualifications without permission. Rule 58.3 though came on the statute book subsequently, merely provides procedure to be undertaken by the employee for such purpose. Whereas Annexure-31 was very much in existence prior to Rule 58.3 and specifically deals with the aspect of eligibility of the employee for higher pay scale when the qualifications are acquired/obtained without taking prior permission. Merely because the procedure for obtaining such permission was introduced for the first time in the year 1975 by inserting Rule 58.3, it does not take away the applicability of Annexure-31 nor does it affect the procedure contemplated thereunder since Annexure-31 was on the statute books much prior to Rule 58.3 came into existence. The contention raised by the learned Counsel for the petitioner in this regard is misconceived and devoid of substance. 19.Similarly, the claim of the petitioner was also adjudicated upon by the Education Officer and vide order dated 8-2-1988, the Education Officer has held that the petitioner is entitled to be given the scale of Grade Teacher in the 25 per cent quota and the management was also directed accordingly. This order of the Education Officer was not called in question or was not challenged by the respondent-Management and, therefore, the same in fact has reached finality. It is no doubt true that the management contended before this Court that the petitioner has misrepresented his case before the Education Officer and, therefore, the Education Officer was justified in reconsidering his earlier order. However, for want of adequate material in this regard, it is very difficult for me at this stage to consider the contention raised by the learned Counsel for the respondent and, therefore, the same is rejected. 20.Even otherwise in an academic set up acquisition of higher and additional qualifications by a teacher is the need of the hour. At the same time while acquiring such higher qualifications the care should be taken that the working of the school should not be affected which is the primary duty of the teacher. 20.Even otherwise in an academic set up acquisition of higher and additional qualifications by a teacher is the need of the hour. At the same time while acquiring such higher qualifications the care should be taken that the working of the school should not be affected which is the primary duty of the teacher. In the instant case, there is absolutely nothing on record to show that the working of the school was affected due to acquiring of the higher qualification by the petitioner. The Management has not placed any document on record in this regard. On the backdrop of this aspect, if Rule 58.3 is considered then the object of Rule 58.3 is quite clear that the permission can be refused only on the ground that the normal work of the school will suffer if such permission is granted. 21.The learned Counsel for the respondent relied on the judgment of this Court dated 13th July, 1999 passed in (Letters Patent Appeal No. 54 of 1999)1, in order to substantiate his contention. The persual of the judgment of this Court would show that the Division Bench was considering the aspect of non observations of Rule 25.1 of the M.E.P.S. Rule. However, there is no provision in the M.E.P.S. Rules which takes care of the situation in case Rule 25.1 is violated. In the present case, Annexure 31 is specifically provided in the Code in order to deal with the situation where the employees has committed breach of discipline/service conditions rules as well as procedure stated in Rule 58.3 and, therefore, I am afraid that the ratio laid down by the above referred Division Bench is not be applicable to the controversy in question. 22.As far as the claim of the petitioner is concerned for the purposes of grant of higher pay scale as per his improved qualification, the Education Officer was in fact justified in holding in favour of the petitioner while passing the order dated 8-2-1988 and also justified in issuing directions to the respondent-management to record the higher qualifications of the petitioner in the service book and grant the higher pay scales of a graduate teacher the 25 per cent quota. The management, however, without legitimate reason deprived the petitioner from getting the higher pay scales and recommendating the case of respondent No. 4 for approval in this category. The management, however, without legitimate reason deprived the petitioner from getting the higher pay scales and recommendating the case of respondent No. 4 for approval in this category. The action of the management, therefore, obviously is incorrect and same is also not sustainable. Consequently, the review of the earlier order by the Education Officer is also not proper which renders the subsequent order dated 22-3-1990 invalid by which the approval is granted to the respondent No. 4 in the said category. The respondent No. 4 though served, none appeared nor any reply/return filed by him in order to refute the claim of the petitioner. 23.In the circumstances the impugned order dated 22-3-1990 passed by the Education Officer is hereby quashed and set aside and the petitioner is entitled to get the scale of graduate teacher in 25 per cent quota with effect from 23-3-1990. The respondent Nos. 1 and 2 are, therefore, directed to pay the difference of emoluments on this basis to the petitioner within the period of three months from today and the respondent No. 3, Education Officer is further, directed to grant the approval to the petitioner in the above referred category with effect from 22-3-1990. The petitioner is entitled to proceed against the respondent No. 4 in accordance with law. The petition is allowed in above terms. Rule made absolute. No order as to costs. Petition allowed. -----