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2010 DIGILAW 785 (BOM)

Bhartiya Adiwasi Shiv Shikshan Sanstha, Garada v. Premdip s/o Sahdeo Bodele

2010-06-11

R.M.BORDE

body2010
Judgment ORAL JUDGMENT: Heard the learned counsel for the petitioners, the learned counsel for respondent No.1, and the learned counsel for respondent No.3. 2. This petition takes exception to the order passed by the Presiding Officer, Additional School Tribunal, Nagpur, on 10-3-2000, whereby the School Tribunal allowed the appeal presented by respondent No.1-Teacher and issued a direction to the petitioner-Management in respect of reinstatement of the Teacher in service with 50% of back wages. 3. It is the contention of the respondent-Teacher that he was serving with the petitioner-Management as Hindi Teacher since 1-7-1987 and was continuously in employment till the date of his termination, i.e. 3-10-1998. At the time of his entry in service, the respondent-Teacher possessed qualification of SSC and he had acquired the degree in Hindi Pandit. According to the respondent-Teacher, he had put in more than 11 years of service and that he is, therefore, deemed to be a confirmed Teacher. According to him, the order of termination issued by the petitioner-Management is illegal and in violation of the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. It is further contented by the respondent-Teacher that initially he was appointed as Hindi Teacher in Narayan Madavi Vidyalaya. However, the said School was closed down by the Management and thereafter his services were continued in another School run by the Management at Minsi. It is further contended by the respondent-Teacher that his service record was unblemished, there was no enquiry initiated by the Management before the termination of his services and as such the impugned order is bad in law. 4. The petitioner-Management appeared and controverted the contentions of the respondent-Teacher by filing a written statement. According to the petitioner-Management, the respondent-Teacher was not qualified for being appointed as Teacher. According to them, the respondent-Teacher was possessing only SSC qualification and was not possessing training qualification, as required by the law. According to the petitioner-Management, the alleged appointment of the respondent-Teacher is itself in violation of the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 read with Rule 6 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and Schedule B to the said Rules. According to the petitioner-Management, the alleged appointment of the respondent-Teacher is itself in violation of the provisions of Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 read with Rule 6 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and Schedule B to the said Rules. It is further contended that the School where the respondent-Teacher was serving, was closed down and as such the services of the respondent-Teacher along with other employees were put to an end. The petitioner-Management has specifically denied that after closure of the School, the respondent-Teacher was absorbed in some other School run by them. It is specifically contended by the petitioner-Management that the respondent-Teacher did not possess the requisite qualification for his continuation as Assistant Teacher and as such he cannot claim any protection from the Tribunal in respect of his services. 5. The School Tribunal, after receiving the evidence led by the parties, came to the conclusion that the respondent-Teacher has established his case and as such, allowed the appeal and quashed and set aside the order of termination passed by the petitioner-Management. 6. I have perused the impugned order passed by the School Tribunal and heard the arguments advanced by the respective counsel appearing for the parties. 7. It cannot be controverted that the respondent-Teacher does not possess the requisite qualification for being appointed as Assistant Teacher in the School run by the petitioner-Management. It is also not controverted that at the time of his appointment, the respondent-Teacher was possessing only SSC qualification and did not possess any training qualification prescribed by the Rules. The School Tribunal has observed that the respondent-Teacher had put in about 11 years of service as untrained Teacher and, therefore, he can be given an opportunity to complete the postal D.Ed. training course in consonance with the policy of the State Government reflected in the Government Resolution dated 6-11-1997. It is not the case of the respondent-Teacher that he fulfills the requirements laid down in the Government Resolution dated 20-7-1990 in respect of referring his name for postal D.Ed. training course. It is neither pleaded nor demonstrated before this Court that the respondent-Teacher fulfills the criteria laid down in the Government Resolutions referred to above. It is also not reflected from the record that the name of the employee was ever referred for D.Ed. training course. training course. It is neither pleaded nor demonstrated before this Court that the respondent-Teacher fulfills the criteria laid down in the Government Resolutions referred to above. It is also not reflected from the record that the name of the employee was ever referred for D.Ed. training course. The School Tribunal has taken into account the material, which was not placed on record. The relevant Government Resolutions are also not placed on record by the respondent-Teacher. It has also not been demonstrated that the respondent-Teacher is eligible for securing admission to postal D.Ed. training course as per the Government policy and as such his services are protected in view of the said policy. The Tribunal has not considered as to whether the respondent-Teacher fulfills the norms prescribed in the Government Resolutions for securing admission to the postal D.Ed. training course. 8. In these circumstances, the only thing that was required to be considered by the Tribunal was as to whether the respondent-Teacher fulfills the criteria in respect of securing appointment as laid down under the provisions of the MEPS Act and the rules made thereunder. Section 5(1) of the MEPS Act provides that the Management shall, as soon as possible, fill in, in the manner prescribed every permanent vacancy in a private school by the appointment of a person duly qualified to fill such vacancy. It is to be noted that the obligation of the Management is in respect of making appointment of a person duly qualified to occupy the post. The qualifications for appointment of a Teacher are laid down in Rule 6 of the MEPS Rules. The minimum qualification for the post of Teacher in the Primary School, Secondary School and Junior College has been specified in Schedule B to the MEPS Rules. Schedule B prescribes that so far as the Primary School Teacher is concerned, he shall have to possess a training qualification, i.e. D.Ed, whereas the Secondary School Teacher is concerned, he shall have to possess a training qualification, i.e. B.Ed. Admittedly, the respondent-Teacher does not possess the required training qualification. Thus the appointment of the respondent-Teacher is not in consonance with Section 5 of the MEPS Act read with Rule 6 of the MEPS Rules and Schedule B to the said Rules. Thus the Teacher, who does not fulfill the criteria in respect of eligibility, is not entitled to seek protection of his services. 9. Thus the appointment of the respondent-Teacher is not in consonance with Section 5 of the MEPS Act read with Rule 6 of the MEPS Rules and Schedule B to the said Rules. Thus the Teacher, who does not fulfill the criteria in respect of eligibility, is not entitled to seek protection of his services. 9. A reference is required to be made to the judgment in the matter of Ashok Asramji Gabhane v. Presiding officer, School Tribunal, Nagpur and others, reported at 2002 (4) Mh.L.J. 225 , wherein it has been observed by this Court in para 12 of the judgment as under : "12. As far as last contention canvassed by the learned Counsel for the petitioner in respect of sub-rule (6) of Rule 3 of the M.E.P.S. Rules is concerned, Rule 3 is not attracted in the present case primarily because it deals with qualifications for appointment of Head of the Institution. The present case is concerned with appointment of the Assistant Teacher and, therefore, by very nature of the Rule, same is not applicable in the case of the petitioner. Even otherwise, by virtue of sub-rule (6) of Rule 3, power is vested in the Education Officer or the Deputy Director of Education, as the case may be, to cancel the appointment of the Head of Institution, which is made without following the procedure laid down in the Rules. That does not, in my opinion, take away the right of the Management to terminate the services of the employee whose appointment is de hors of the relevant Rules and procedure in this regard. If the appointment is void ab initio, illegal and de hors of the procedure, in that case, the Management possesses power independently to terminate the services of such employee irrespective of the fact whether such power is vested in the Education Officer or the Deputy Director of Education under subrule (6) of Rule 3." 10. If the appointment is void ab initio, illegal and de hors of the procedure, in that case, the Management possesses power independently to terminate the services of such employee irrespective of the fact whether such power is vested in the Education Officer or the Deputy Director of Education under subrule (6) of Rule 3." 10. As laid down by a Division Bench of this Court in the judgment in the matter of Anna Manikrao Pethe v. School Tribunal, reported at 1997 (3) Mh.L.J. 697 , before entertaining an appeal, it would be necessary for the Tribunal to decide three preliminary issues namely, (a) whether the School was recognised School under the MEPS Act; (b) whether the appointment of the concerned teacher was made as per section 5 of the MEPS Act; and (c) whether the appointment has been approved by the Education Officer in pursuance of the provisions of the Act and Rules made thereunder. The learned counsel for the petitioner-Management contended that the School Tribunal while deciding the matter has not dealt with the three issues referred to above. However, even if it is presumed that the Tribunal has not decided the issues, which are required to be dealt with by it before dealing with the matter on its own merits, so far as the instant matter is concerned, admittedly the respondent-Teacher does not fulfill the requirements of Section 5 of the MEPS Act as well as Rule 6 of the MEPS Rules and Schedule 6 to the said Rules in respect of securing appointment as Assistant Teacher and as such the respondent-Teacher is not entitled to continue in service. As the respondent-Teacher lacks the essential qualification for securing the appointment, it was not open for him to legally pray for protection of his services and the School Tribunal could not have directed reinstatement of services of the respondent-Teacher. 11. In the above peculiar facts and circumstances, it is, therefore, even not necessary to remit the matter back to the Tribunal for consideration of the three preliminary questions referred to above. 12. For the reasons stated above, I am of the view that the order passed by the School Tribunal is erroneous and liable to be quashed and set aside. 13. 12. For the reasons stated above, I am of the view that the order passed by the School Tribunal is erroneous and liable to be quashed and set aside. 13. The petition is, therefore, allowed and the impugned order passed by the learned Presiding Officer, Additional School Tribunal, on 10-3-2000 in Appeal No.STC/131 of 1998 is quashed and set aside. 14. Rule is made absolute in above terms. However, in the circumstances of the case, there shall be no order as to costs.