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2019 DIGILAW 2009 (BOM)

Sachin Panjabrao Surwade v. State of Maharashtra

2019-08-28

R.K.DESHPANDE, VINAY JOSHI

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JUDGMENT : R.K. Deshpande, J. Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties. 2. The challenge in this petition is to the Government Resolution dated 7-2-2019 along with the Corrigendum dated 25-2-2019, which prescribes the criteria of having 50% marks at the qualifying graduate or post-graduate examination for appointment to the posts of teachers to teach Standards IX to XII in the Private Schools governed by the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (MEPS Act) and the Rules framed there under. 3. The minimum qualifications for appointment to the posts of teachers in the Private Schools are governed by the provisions of sub-rules (1) and (2) of Rule 6 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (MEPS Rules), dealing with the qualifications of teachers and non-teaching staff, which are reproduced below : 6. Qualifications of teachers and non-teaching staff.-- (1) The minimum qualifications for the posts of teachers and the non-teaching staff in the primary schools, secondary schools, higher secondary schools, junior colleges and junior colleges of education shall be as specified in Schedule 'B'. (2) The Government or the agency authorized by the Government shall conduct the Eligibility Test and Aptitude Test for the appointments of the teachers or shikshan sevaks for standard I to VII and Aptitude Test for the appointments of teachers or Shikshan Sevaks for standard IX to XII in the private aided schools, partially aided schools and schools eligible for grant-in-aid, from time to time. Part II in Schedule 'B' deals with the qualifications for trained teachers in Secondary Schools and Junior Colleges of Education. A trained graduate teacher means one who possesses a Bachelor's degree in Teaching or Education of any statutory University or a qualification recognized by the Government as equivalent thereto along with a professional certificate, a diploma or a degree recognized by the Department which qualifies him for a teaching post in a School. A full-time teacher in Junior College means a teacher who possesses a Master's degree of a statutory University in second class in the respective subjects plus B.Ed., or a Diploma or a Certificate in Teaching, approved by the Department. A full-time teacher in Junior College means a teacher who possesses a Master's degree of a statutory University in second class in the respective subjects plus B.Ed., or a Diploma or a Certificate in Teaching, approved by the Department. It is only after possessing these qualifications for appointment to the teaching posts in Standards IX to XII that a person becomes eligible to appear for the Eligibility Test and Aptitude Test, as prescribed in sub-rule (2) of Rule 6, reproduced above. 4. The petitioners, who are desirous of getting recruited to the posts of teachers in Private Schools to teach Standard IX to XII, satisfy the criteria of minimum qualifications prescribed under sub-rules (1) and (2) of Rule 6 read with Schedule 'B'. All of them possess either graduate or post-graduate degree in second class and had appeared for the Teacher's Aptitude and Intelligence Test (TAIT) conducted as per the Government Resolution dated 23-6-2017, as was modified on 7-2-2019, keeping in view the decision rendered by this Court on 21-1-2018 in Writ Petition No.5059 of 2018 during 12-12-2017 to 21-12-2017. The results of these examinations were declared on 1-3-2018. 5. It is not in dispute that about 12,140 posts of teachers to teach Standards IX to XII were advertised on the 'PAVITRA' Portal during 22-2-19 to 8-3-2019, out of which 8,020 posts were available in the Schools run by Nagar Parishad, Mahanagar Palika and Zilla Parishad, whereas 3,060 posts were in the Private Aided Schools. The petitioners are held to be ineligible to apply for these posts by providing access to the 'PAVITRA' Portal on the ground that by the Government Resolution dated 7-2-2019 read with the Corrigendum dated 25-2-2019, the criteria of having 50% marks at the graduate or post-graduate level is prescribed under Schedules 'C' and 'D', appended to the said Government Resolution, and none of the petitioners possess such marks at the graduate or post-graduate level. The petitioners have, therefore, approached this Court, as they stood ousted from the zone of consideration, though they do possess the minimum qualifications prescribed in Rule 6 read with Schedule 'B' of the MEPS Rules, referred to above, and have passed the TAIT Examination. 6. The petitioners have, therefore, approached this Court, as they stood ousted from the zone of consideration, though they do possess the minimum qualifications prescribed in Rule 6 read with Schedule 'B' of the MEPS Rules, referred to above, and have passed the TAIT Examination. 6. On 14-6-2019, this Court passed an order as under : The petitioners were successful in the Teachers Ability and Intelligence Test (TAIT) examination held during the period between 12th December, 2017 and 21st December, 2017, the results of which were declared on 1st March, 2018. The petitioners are qualified in terms of the qualifications prescribed in Schedule B for selection and appointment to the post of Teachers in standards IX, X, XI & XII. However, by Government Resolution dated 7th February 2019, the criteria of qualification is changed and acquisition of 50% of marks at the graduate and post-graduate level is introduced which is not there in Schedule B . As a result, the petitioners are ousted form competition and unable to apply for employment pursuant to several advertisements which have been issued. Issue notice to respondents for final disposal of the matter, returnable on 21st June, 2019. Learned Addl. G.P. Mr. Anand Fulzele, waives service of notice on behalf of respondent nos.1 and 2. The process of selection may go on pursuant to such advertisements; however the order of appointment shall not be issued. We are informed that the process of selection has gone ahead and though the candidates are selected, no appointments are made as yet in view of the aforesaid order passed by this Court. 7. The question is whether the action of the respondents is illegal and justifiable to deny the petitioners the access to the 'PAVITRA' Portal and to oust them from the zone of consideration on the basis of the criteria of 50% of marks at the graduate or postgraduate level, prescribed in the Government Resolution dated 7-2- 2019 read with the Corrigendum dated 25-2-2019. 8. The recruitment and conditions of service of employees in the Private Schools are governed by the MEPS Act and the Rules framed there under. Section 16 of the MEPS Act confers the power upon the State Government to frame the rules, and sub-sections (1) and (2) therein being relevant, are reproduced below : 16. Rules. 8. The recruitment and conditions of service of employees in the Private Schools are governed by the MEPS Act and the Rules framed there under. Section 16 of the MEPS Act confers the power upon the State Government to frame the rules, and sub-sections (1) and (2) therein being relevant, are reproduced below : 16. Rules. (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :- (a) the minimum qualifications for recruitment of employees of private schools (including its procedure); (b) their scales of pay and allowances; (c) their post retirement and other benefits; (d) the other conditions of service of such employees including leave, superannuation, re-employment and promotions; (e) the duties of such employees and Code of Conduct and disciplinary matters; (f) the manner of conducting enquiries; (g) any other matter which is required to be or may be prescribed. The minimum qualifications for recruitment of employees of Private Schools, including its procedure, are governed by the Rules framed in exercise of the power conferred under clause (a) of sub- section (2) of Section 16, reproduced above. Such Rules have already been framed, called as The Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 and published in the Official Gazette on 16-7-1981. 9. In Para 5 of the affidavit dated 3-8-2019, filed on behalf of the respondents, the stand is taken as under : 5. The answering respondent submit that in the said GR, it is specifically stated that the educational eligibility criteria for the candidates to be selected as teachers for standard 9th to 12th will be as per the criteria prescribed in the Maharashtra Employees of Private Schools (condition of service) Regulation Rules, 1981 and it is necessary to look into the provision of Rule 6 of the Maharashtra Employees of Private Schools (condition of service) Regulation Rules 1981, more specifically stated in schedule B. A copy of Schedule B is annexed herewith as Annexure R-1. It is not disputed on behalf of the respondents, and rather in response to our query it is admitted, that Schedule 'B' under the MEPS Rules, the criteria of obtaining 50% marks at the graduate or post-graduate level is not specified. It is not disputed on behalf of the respondents, and rather in response to our query it is admitted, that Schedule 'B' under the MEPS Rules, the criteria of obtaining 50% marks at the graduate or post-graduate level is not specified. It is not the stand taken that Schedule 'B' appended under the MEPS Rules is either required to be amended or any steps are being taken to amend the said Schedule prescribing the qualifications for appointment to the posts of teachers to teach Standards IX to XII. 10. The petitioners having undisputedly fulfilled the criteria of qualifications prescribed under sub-rules (1) and (2) of Rule 6, reproduced earlier, read with Schedule 'B', could not have been denied their right to have access to the 'PAVITRA' Portal to apply for the posts of teachers in question to teach Standards IX to XII in Private Schools. We, therefore, find that the action of the respondents denying the petitioners of their right of being considered for the posts of teachers in Private Schools to teach Standards IX to XII, is contrary to the provisions of Rule 6(1) and (2) read with Schedule 'B' of the MEPS Rules. 11. The Government Resolution dated 7-2-2019 read with Corrigendum dated 25-2-2019 and Schedules 'C' and 'D' therewith prescribing obtaining of 50% marks at the graduate or post-graduate level denies the right of the petitioners for being considered for the posts of teachers in Private Schools to teach Standards IX to XII. The introduction of such criteria is not by issuing the notification in the Official Gazette by the Government in exercise of its power conferred by Section 16(1) of the MEPS Act read with clause (a) of sub-section (2) therein. The Government Resolutions cannot have the effect of amending the provisions of the Rules and the Schedule prescribed there under. In fact, it is also not the stand of the Government that these statutory provisions stood amended by virtue of the said Government Resolution and the Corrigendum. Hence, such criteria cannot be made applicable to the recruitment to the posts of teachers in Private Schools governed by the MEPS Act and the Rules framed there under. 12. In fact, it is also not the stand of the Government that these statutory provisions stood amended by virtue of the said Government Resolution and the Corrigendum. Hence, such criteria cannot be made applicable to the recruitment to the posts of teachers in Private Schools governed by the MEPS Act and the Rules framed there under. 12. In view of above, this petition is allowed and the following order is passed : ORDER (1) The criteria of possessing 50% marks at the graduate or post-graduate level, introduced in Schedules 'C' and 'D' of the Government Resolution dated 7-2-2019 along with the Corrigendum dated 25-2-2019, is hereby quashed and set aside to the extent it is made applicable to the recruitment of teachers in the Private Schools governed by the MEPS Act and the Rules framed there under. (2) The respondents are directed to permit the petitioners to have access to the 'PAVITRA' Portal for recruitment to the posts of teachers in Private Schools, i.e. Secondary Schools and Higher Secondary Schools (Junior Colleges), to teach Standards IX to XII. (3) Though the persons are selected for the posts in question to teach Standards IX to XII in Private Schools, the respondents would not be able to proceed further to make their appointments. (4) The respondents shall be at liberty to conduct fresh process of selection for the posts of teachers to teach Standard IX to XII in Private Schools as per the advertisement on the 'PAVITRA' Portal. 13. Rule is made absolute in above terms. No order as to costs.