JUDGMENT - CHANDRACHUD D.Y. (Dr.), J.:---The first petitioner is a Public Charitable Trust, registered under the provisions of the Bombay Public Trusts Act, 1950 and conducts an educational institution by the name of Fatimadevi English High School. The first respondent was appointed as an assistant teacher on probation with effect from 24th June, 1998 subject to approval, in a clear vacancy. On 28th December, 1998, the Education Inspector granted approval to the appointment of the first respondent for the period from 30th June, 1998 till 30th April, 1999. On 26th March, 1999 the services of the first respondent were terminated on the ground that the Education Inspector had sanctioned the appointment of the first respondent only for the academic year 1998-99. Thereafter, the first respondent was once again appointed by the petitioners on probation for a period of two years with effect from 14th June, 1999. By a communication dated 22nd July, 1999, the Education Inspector declined to grant approval to the proposal submitted by the petitioners stating thus: "It has come to the notice of this office that teacher Smt. Sushma Upadhyay of your school is B.Com., B.Ed. In the proposal submitted by you for approval you have mentioned that she is M.A., B.Ed. and you have misguided this office and obtained the approval. Therefore, since and said teacher is not B.A. but B.Com. she should not be reappointed and explanation may be tendered for misguiding this office." 2. Therefore, the services of the first respondent came to be terminated by the management on 24th August, 1999 citing as the reason for termination, the communication of the Education Officer ruling that the first respondent lacked the required qualifications. 3. The first respondent thereupon, moved the School Tribunal by an appeal under section 9 of the Maharashtra Private Schools (Conditions of Service) Regulation Act, 1977. It appears that during the pendency of the appeal, consent terms were filed before the Tribunal and an order in terms thereof came to be passed on 29th September, 1999 allowing the appeal and setting aside the order of termination. A further order was passed by the Tribunal on 8th February, 2000, directing the Deputy Director of Education to deduct the amount of arrears from the grant due and payable to the school and pay over the amount to the first respondent. A further order was passed by the Tribunal on 8th February, 2000, directing the Deputy Director of Education to deduct the amount of arrears from the grant due and payable to the school and pay over the amount to the first respondent. The management thereupon, moved this Court and by an order dated 2nd August, 2000, both the orders of the School Tribunal were set aside by consent and the Tribunal was directed to hear and dispose of the appeal afresh. In pursuance thereof, the School Tribunal has rendered a judgment on 16th October, 2000 after hearing the parties. The Tribunal has come to the conclusion that the first respondent was duly qualified; that as a probationer, she had attained the status of an employee who must be deemed to have been confirmed by virtue of the provisions of section 5(2) and that the order of termination had not been passed by the competent authority. An order of reinstatement has been passed together with a direction for payment of backwages. 4. The issue which arises in these proceedings is whether the first respondent was qualified to hold the post of an assistant teacher. There is no dispute about the fact that the first respondent was appointed to teach the subject of Hindi as a language teacher. The Rules governing the qualifications of secondary teachers are contained in Part II of Schedule B of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Part II of Schedule B deals with the qualifications for trained teachers in Secondary Schools and Junior Colleges of Education. Clause (1) there of lays down the qualification for graduate teachers. The prescribed qualifications inter alia specified are a bachelors degree in teaching or eduction of any statutory University or a qualification recognised by Government as equivalent thereto. The qualifications for language teachers such as those in Arabic, Hindi, Persian and Sanskrit are stipulated in Clause (5) of Part II to Schedule B. Therein it is provided that for graduate teachers any degree, diploma or certificate which Government or the Inter-university Board may sanction as equivalent to the professional qualifications as referred to under Clause (1) would be adequate. 5. The Rules as they stand, thus provide qualification in Part II of Schedule B. For trained teachers, these are distributed among graduate teachers and under graduate teachers. 5. The Rules as they stand, thus provide qualification in Part II of Schedule B. For trained teachers, these are distributed among graduate teachers and under graduate teachers. A graduate teacher by the very nomenclature of the expression has to be a graduate. The rules as they stand do not contain any express stipulation in regard to the area or subject in which the graduation should have been obtained by the teacher. However, Government issued a resolution on 20th April, 1978 the purport of which was that an assistant teacher in a high school must hold a qualification of B.A. or B.Sc. With at least one subject (other than compulsory English) which is taught at the school level. After the enforcement of the rules, a circular was issued by the Deputy Director of Eduction on 5th February, 1998. The circular refers to the Government Resolution dated 20th April, 1978 and states that the degree graduation from a recognised university should be in one of those subjects taught as per the syllabus of the secondary school level viz., standards VIII to X. The circular recorded that according to the Government Resolution appointments of Assistant teachers to teach standards VIII to X should be made from trained teachers. Moreover, these teachers should hold a degree from a recognized University in at least one of the subjects taught as per the syllabus for standards VIII to X. The immediate reason for the circular was the question as to whether a teacher who had a Bachelors Degree in Commerce (B.Com.) should be approved for teaching as a Secondary School Teacher. The circular notes that from the year 1994-95, the subject of economics was included together with Sociology/Social Studies. Hence, if the total work load of the subject of economics is considered, and if the full work load in that subject is available, then and then only, would approval be given to a teacher with a Bachelors degree in Commerce. The circular notes that though Schedule B of the Rules is silent in regard to the approval of a teacher with B.Com. and B.Ed. qualification, and there is also no specific direction to the effect that such a teacher should be approved. 6. The aforesaid circular came up for consideration before a Division Bench of this Court in (Harlal Harchand Pardeshi v. State of Maharashtra)1, 2001(2) Bom.C.R. (A.B.)547. and B.Ed. qualification, and there is also no specific direction to the effect that such a teacher should be approved. 6. The aforesaid circular came up for consideration before a Division Bench of this Court in (Harlal Harchand Pardeshi v. State of Maharashtra)1, 2001(2) Bom.C.R. (A.B.)547. The Division Bench of this Court was of the view that the circular which has been issued on 5th February, 1998 does not operate to alter the provisions of the rules framed under the Act since the Rules have a statutory character and cannot be modified by administrative directions. The Division Bench noted that all that has been stated is that appointments of teachers possessing the B.Com. B.Ed. qualifications should not be approved unless there is sufficient work load in the subjects which they have studied at the graduation level i.e. for B.Com. degree examination and if sufficient work load is not available in those subjects the appointment should not be approved. Before the Division Bench, on behalf of the teachers who held B.Com. and B.Ed. qualifications, it was sought to be asserted that in the course of their studies for the B.Ed. degree, the teachers had studied inter alia modern trends in education and methodology of two school subjects, namely Marathi and History. Hence, it was urged that though these teachers might not have studied either Marathi or History at the degree level, the studies which were pursued in those subjects during the course of the B.Ed. studies would suffice. Rejecting the contention, the Division Bench held that the thrust of the Rules while prescribing the educational qualifications is on the qualifications to be achieved by teachers at the graduation level and thus graduates become trained graduates by obtaining a degree or diploma in education. The Court noted that the course content of the B.Ed. course in the paper in teaching methodology, consisting of two subjects, cannot be a substitute for the course content of these subjects at the basic degree level. Having said this, the Division Bench further observed as follows: "The B.Ed. degree level course content may enrich the graduate teacher with additional skills in teaching or psychology in teaching or methodology in teaching but the basic subject enrichment can be achieved at the graduation or post graduation level in these subjects. Though the scheme of the MEPS Rules postulates and recognises B.Com. B.Ed. degree level course content may enrich the graduate teacher with additional skills in teaching or psychology in teaching or methodology in teaching but the basic subject enrichment can be achieved at the graduation or post graduation level in these subjects. Though the scheme of the MEPS Rules postulates and recognises B.Com. B.Ed. as one of the qualifications for appointment to the post of Assistant teacher in secondary schools the Education Officer or the Deputy Director of Education has a statutory duty while granting approval to such appointments, to examine the qualifications at the basic degree level as well as post graduation level and not at the B.Ed. level so as to grant approval to these appointments. If the work load available in a particular school in the subjects which the concerned teacher has studied at the graduation level does not warrant his full term appointment or if there is no workload at all in such subjects, the Education Officer would not be at fault while declining approval to such teachers irrespective of their post degree level qualifications like B.Ed. or B.P.Ed. or even M.Ed. for that matter." (emphasis supplied). 7. In the present case, if the first respondent were to rest her case on her holding the B.Com. and B.Ed. qualifications, there can be no doubt that she would fail in view of the judgment of the Division Bench, but the case of the first respondent has to be considered from the additional perspective that she holds besides B.Com. and B.Ed. qualifications, the post graduate degree of an M.A. in Hindi from the Mumbai, University. There is no dispute about the fact that the first respondent is an M.A. in Hindi. Counsel appearing on behalf of the education department submits that in view of the judgment of the Division Bench, the post graduation in Hindi would not be sufficient to enable the first respondent to fulfil the required qualifications. In so far as this aspect of the matter is concerned, it would be necessary to revisit the judgment of the Division Bench. Before the Division Bench what was in issue was the eligibility of an Assistant teacher who holds the B.Com. and B.Ed. qualifications. The eligibility of such a person was sought to be advanced before the Division Bench by contending that the studies which were prosecuted in the methodology paper for the B.Ed. Before the Division Bench what was in issue was the eligibility of an Assistant teacher who holds the B.Com. and B.Ed. qualifications. The eligibility of such a person was sought to be advanced before the Division Bench by contending that the studies which were prosecuted in the methodology paper for the B.Ed. examination in Marathi and History would meet the requirement of having studied Marathi and History subjects which were taught in the school curriculum. This was turned down by the Division Bench which held that studies in the subjects of Marathi and History, at the B.Ed. level would be no substitute for the study of these subjects at the graduate level. The Division Bench was not considering a situation such as the present where a candidate has a masters degree in the very subject which is taught at the school level. Indeed, the observations of the Division Bench which have been cited earlier would show that the view of the Bench was that while the course content of the B.Ed. degree may enrich the graduate teacher with additional skills in teaching, or psychology in teaching, or methodology in teaching the "basic subject enrichment can be achieved at the graduation or post graduation level in these subjects". Similarly, the Division Bench observed that it is the duty of the Education Officer and Deputy Director of Education to examine the qualifications at the basic degree level as well as post graduation level and not at the B.Ed. level while granting approval to these appointments. The Court then held that the Education Officer would not be at fault while declining approval to such teachers irrespective of their post degree level qualifications like B.Ed. or B.P.Ed. or even M.Ed. for that matter. In the present case, the first respondent has an M.A. in the subject of Hindi from the Mumbai University. This, in my view, would not merely be substantial compliance with the requirement of the circular dated 5th February, 1998 but compliance both in form and in substance. The Rules, as I have already noted earlier, are silent in this regard and the requirement that an Assistant Teacher, in order to eligible as a trained graduate teacher must have studied a subject at the degree level of the curriculum offered at the school level has been introduced in the circular dated 5th February, 1998 and the earlier G.R. of 20th April, 1978. The object of the circular and G.R. is to ensure that an Assistant Teacher who is appointed as a trained graduate teacher is really and truly trained in the subject which forms part of the curriculum at the school level. In a case such as the present, where the language teacher has completed the masters degree in the very subject, namely, Hindi, this requirement is duly met. 8. Before concluding the discussion on this aspect of the matter, it would be necessary to advert to the judgment of the Full Bench of this Court in (Jayashree Sunil Chavan v. The State of Maharashtra)2, 2000(3) Bom.C.R. (F.B.)803. Schedule B to the Rules framed under the Act enunciates that the qualifications for the post of a primary teacher shall be the passing of the S.S.C. Examination and a Diploma in Education (D.Ed.). The contention of the petitioner before the Court, who has B.A. and B.Ed. qualified was that she had more than the required qualifications and that consequently she must be held to be eligible for appointment as an Assistant Teacher in a primary school. The Division Bench noted that the syllabus for B.Ed. is entirely different from the syllabus for the D.Ed. course and that the D.Ed. programme is better suited for imparting education to students taking education in primary school. Contrariwise, the syllabus for B.Ed. is better suited for students taking education in higher standards. In these circumstances, the Court held that the B.Ed. and D.Ed. qualifications operate in separate and distinct fields and there is no question of there being one qualification higher than the other particularly with regard to the requirement of primary schools. Hence, it was held that the B.Ed. being a Bachelors degree could not be held to be a higher qualification than D.Ed., on the ground that the latter is a Diploma, for the purpose of appointment of a primary school teacher. The basis and foundation of the judgment of the Full Bench, therefore, is that the B.Ed. and D.Ed. qualifications operate in distinct fields; the syllabus is different and whereas the D.Ed. programme was particularly suited for training primary school teachers, the B.Ed., is designed for teachers who desire to teach students in secondary school and higher standards. 9. In the present case, however, the position is entirely different. and D.Ed. qualifications operate in distinct fields; the syllabus is different and whereas the D.Ed. programme was particularly suited for training primary school teachers, the B.Ed., is designed for teachers who desire to teach students in secondary school and higher standards. 9. In the present case, however, the position is entirely different. The Rules framed under the Act, as already noted, do not prescribe the holding of a graduate degree in any particular discipline. In order that a teacher can be regarded as a trained graduate teacher for secondary students, the circular issued by the Deputy Director of Education of 5th February, 1998 supplements the provisions of the statutory rules by laying down that a teacher who possesses a B.Com. degree qualification would be eligible to teach the secondary section only if subjects at the B.Com. level such as Economics are also taught as a part of the school curriculum. Neither the Rules nor the circular envisage that the masters degree held by a language teacher in the very language in which she has been engaged to teach must be ignored or that this would not meet the requirement of being well versed and proficient in that language. An M.A. in Hindi is a qualification which falls in the same line of education as a B.A. in Hindi and a teacher who has completed her M.A. in Hindi must be regarded as possessing sufficient proficiency for being appointed as a language teacher in that subject. The first respondent holds an M.A. in Hindi from a recognised University, namely, Mumbai University. The Education Inspector in his communication dated 22nd July, 1999 noted that it had been drawn to the attention of his office that the first respondent is B.Com. B.Ed. He was of the view that his office has been misguided since the proposal submitted stated that the first respondent held the M.A. and B.Ed. qualification. The fact that the first respondent held that both the M.A. and B.Ed. qualification is not disputed. In these circumstances, it must be held that the first respondent was duly qualified to hold the post of an Assistant Teacher for the secondary section and that the basis on which the Education Inspector declined his approval and consequently, the basis of the termination of her services is flawed. 10. qualification is not disputed. In these circumstances, it must be held that the first respondent was duly qualified to hold the post of an Assistant Teacher for the secondary section and that the basis on which the Education Inspector declined his approval and consequently, the basis of the termination of her services is flawed. 10. The only ground on which the Education Inspector declined to grant approval to the first respondent was that she was not a B.A. at the graduate level but a B.Com. degree holder. No objection was raised in the correspondence at that stage on the ground of the availability of workload. However, in the affidavit which has been filed before this Court on 9th January, 2001 by the Deputy Education Inspector, it has been averred that the department had asked the petitioner school to submit the details of the workload of teachers teaching the subject of Hindi for secondary classes and that these details were submitted by the Headmaster. The workload statistics, the Court is informed, showed that there were three teachers teaching Hindi in 14 Divisions of Standards VIII, IX and X; that the total workload was 84 periods of 30 minutes each. This would correspond to 42 teaching hours. Rule 21 of the Rules framed under the Act inter alia provides that a full time teacher in a secondary school who is teaching in classes with an average enrollment of 30 or less pupils should do actual teaching work for 19 hours per week. For a class of more than 50 pupils the workload should be 17 hours per week. In the circumstances, it has been averred that a workload of approximately 42 teaching hours would justify two full time teachers. However, the school already had three teachers and, therefore, no permission could be granted for an additional full time teacher. 11. In so far as this issue is concerned, Counsel appearing on behalf of the management and the first respondent have stated before the Court that apart from teaching students of Standards VIII, IX and X, the Hindi language teacher is also required to teach students of Standards V, VI and VII. 11. In so far as this issue is concerned, Counsel appearing on behalf of the management and the first respondent have stated before the Court that apart from teaching students of Standards VIII, IX and X, the Hindi language teacher is also required to teach students of Standards V, VI and VII. Moreover, it is urged that the school has two sessions, one in the morning and another in the afternoon and during the course of the afternoon session, the first respondent is the only language teacher in Hindi who is available for work. In these circumstances, it was sought to be submitted that the department should be called upon to reconsider the availability of workload since as a matter of fact sufficient workload is available. Moreover, it is stated that since no interim stay was granted to the order of reinstatement of the School Tribunal, the first respondent continues to teach the subject in hindi continuously for the last four years. 12. As already noted earlier, the non-availability of workload was not a ground upon which the Education Inspector declined to grant approval on 22nd July, 1999. Besides, it would be necessary for the department to reconsider the issue having regard to the contention of the management as well as the first respondent that sufficient workload is available if the statistics relating to Standards V, VI and VII are also considered together with the workload available for Standards VIII, IX and X and if the additional requirement of the school to engage a teacher for the afternoon session is to be borne in mind. In my view, having regard to these facts and circumstances, it would be appropriate to direct that the question as regards the availability of workload be reconsidered by the department. The petitioner shall supply all the necessary information to the department within a period of two weeks from today. The Education Inspector shall arrive at his decision after giving an opportunity of being heard to the concerned parties, within a period of four weeks thereafter. 13. In the meantime, from the narration of the facts it would appear that the first respondent is all along performing her duties as a Hindi language teacher. Counsel appearing on behalf of the first respondent has made a serious grievance about the fact that the first respondent has not received her salary for over five years from 1999. 13. In the meantime, from the narration of the facts it would appear that the first respondent is all along performing her duties as a Hindi language teacher. Counsel appearing on behalf of the first respondent has made a serious grievance about the fact that the first respondent has not received her salary for over five years from 1999. Counsel for the petitioners states that the management has taken an undertaking from the first respondent that she would not claim any salary if approval is not granted by the Education Department. In my view, such an undertaking is wholly unsustainable and it is clearly not permissible to the management to extract work from a teacher on the specious plea that it has obtained an undertaking that she would not claim wages if approval is not granted by the department. A teacher who is placed in the position of the first respondent has little or no choice but to sign the dotted line. In the event, the Education Department declines to grant approval, in view of the well settled position in law, the primary liability is that of the management which is accordingly liable to pay the dues of the teacher. There shall be a direction in those terms in so far as present case is concerned. Irrespective of whether or not the Education Department grants approval to the appointment of the first respondent, the petitioners would be liable to pay the salary of the first respondent. However, in the meantime, until a final decision is arrived at by the Education Department, it would be appropriate to direct that the department shall issue provisional approval to the first respondent which would facilitate the disbursement of the salary of the first respondent. In the event that the Education Department comes to the conclusion that sufficient workload is not available to sustain the appointment of the first respondent, it would be open to the aggrieved party to adopt proceedings in accordance with law. The order passed by the School Tribunal shall in the circumstances stand confirmed to the extent to which the School Tribunal held that the first respondent was duly qualified for appointment as an Assistant Teachers. The order passed by the School Tribunal shall in the circumstances stand confirmed to the extent to which the School Tribunal held that the first respondent was duly qualified for appointment as an Assistant Teachers. In view of the directions which have already been issued for the Education Department to reconsider the availability of workload, the order passed by the School Tribunal shall stand modified in terms of the directions which have already been issued in the earlier part of this judgment. The petition is accordingly disposed of. There shall be no order as to costs. 14. Parties to act on a copy of this order duly authenticated by the Associate/personal Secretary of this Court. Order accordingly. -----