ORDER
B.H. Marlapalle, J.
1. Heard learned Counsel for respective parties, school managements and learned Additional Government Pleader for the State Authorities.
2. The petitioners are untrained primary teachers employed in private recognized schools which are either aided or unaided by the Government. They are challenging the instructions issued by the Government of Maharashtra vide communication dated 5th November, 1997 and 13th April, 1998regarding the admissions to the Postal Course of Diploma in Education. By these petitions, they have prayed for a declaration that these communications are illegal, ultra vires the provisions of Article 14 of the Constitution of India and the petitioners are entitled for admission to the Postal D.Ed. Course, in pursuance of the rules framed by the State of Maharashtra and they have further prayed for a Writ of Mandamus, directing the Education Officers/ Deputy Director of Education to grant approval to their service as Primary Teachers and the consequential relief of pay scales.
3. By a communication dated 5-11-1997, the State Government informed the Director of Education, Maharashtra State, that no approval should be granted to the appointments of untrained teachers by the Education Officer/ Deputy Director of Education, as there were adequate number of trained candidates available for such posts and it was further warned that if such cases of approval to the appointments of untrained teachers were brought to the notice of the Government, serious action will be initiated against such officers and this should be informed to the officers concerned. Similarly, if the private schools had appointed such untrained teachers, it was directed that such schools should not be granted recognition. So as to regularize the services of the untrained teachers whose appointments have been approved, the Director was advised to take such steps as were set out in the said communication and one of such steps, against which the petitioners have approached this Court, is regarding the admissions to the Postal D.Ed. Course. Clause 'A' of the said communication states that untrained teachers whose appointments have been approved, who are in uninterrupted service in recognized schools, would be considered for admission to Postal D.Ed. Course even though their appointments have been made after April, 1989. By the next communication dated 13-4-1998, the Government has clarified that if the approval to the appointment of such untrained teachers has been granted by the Education Officer or Deputy Director of Education at least once any time from the date of appointment till June 1997, such teachers who are working in recognized private schools and were in uninterrupted service, would be eligible for admission to the Postal D.Ed. Course. The challenge of the petitioners is regarding this condition of approval to the appointment by the Education Officer or Deputy Director of Education.
PETITIONER'S CASE
4. It is the contention of the petitioners that they are entitled to be admitted to the Postal D.Ed. Course even though their appointment as Primary School Teacher has not been approved by the Education Officer or any other competent authority at any time. The condition of approval to their services, as set out in communication dated 5-11-1997 and a further clarification that at least approval of one year, vide circular dated 13-4-1998, is illegal arbitrary and violative of Article 14 of the Constitution, in as much as there is no nexus between the action of approval and admission to D.Ed. Course so as to provide them an opportunity to obtain requisite qualification of Diploma in Education and there cannot be a distinction between such untrained primary teachers on the basis of approval to their services by the competent authority. The Postal D.Ed. Course scheme has been incorporated by the Government, so as to provide training facilities to all the untrained primary school teachers and to put a restriction of approval of service is unwarranted and discriminatory being brought in by the Government by way of administrative instructions. The Secondary School Code or M.E.P.S. Act or M.E.P.S. Rules, do not provide for approval being granted by competent authority to the appointment of a school teacher and hence, it is not a statutory requirement. If approval is not a statutory requirement, the Government cannot insist upon for approval of services at least for one year in respect of untrained teachers who are seeking admission to Postal D.Ed. course. Though Rule 6 of M.E.P.S. Rules read with Schedule 'B' lays down qualifications for the post of primary school teacher, the untrained teachers have been appointed and in some cases such appointments have been approved by the department. Whereas, in the case of petitioners who are untrained teachers, appointments have been made and continued for years together [varied from one year upwards] and these appointments have not been approved at any time by the concerned authorities and the action of refusal or reasons for refusal have not been communicated either to the management or to the teachers. The M.E.P.S. Rules provide for a pay scale to the untrained primary teachers and hence, the appointment of such untrained teachers made by the private school managements in private aided or non-aided (though they do not fulfil the qualifications as contemplated under the said rules) cannot be held to be illegal. In the premises, the Government's action in insisting upon approval for at least one year in respect of the petitioners appointment as primary school teacher is ex facie illegal and deserves to be quashed and set aside by this Court, is the common argument advanced by the learned Counsel for the petitioners before us.
5. It is also further submitted by some of the petitioners that Rule 6 of the M.E.P.S. Rules empowers the management to appoint untrained graduate teachers in certain cases and the said provision should also be deemed to be available for the appointment of the primary teacher in view of the fact that the purpose of establishing primary schools in remote villages is to free the children from illiteracy and primary education being a fundamental right as enshrined under Article 21 of the Constitution of India.
Our attention has also been invited to the rules for appointment under the Zilla Parishads and other local self governments like Municipal Council/ Corporation, Municipal School Board, etc., wherein, there is a provision for making an exception to appointment of candidates who do not fulfil the educational qualifications, in service conditions.
Lastly, the petitioners have contended that a large number of untrained primary school teachers are presently in employment of the private schools both aided and unaided and if they are not allowed to join the postal D.Ed. Course, which is extended till the year 2001, they will be denied an opportunity to acquire necessary training qualifications and they are likely to be thrown out of the employment, in spite of the fact that they have satisfactorily performed their duties as primary teachers in the respective schools and that the concerned Education Officers have practised discrimination in respect of same set of untrained teachers by granting approval in some cases and by not granting approval or by not intimating any decision in that regard to the concerned management, as a result of which, the petitioners are put to disadvantage for no fault on their part.
Lastly, the petitioners have placed strong reliance on the judgment passed by this Court (Mane and Kochar, JJ.) in Writ Petition No. 2297/1994 and other connected petitions on 2-9-1998 and in judgment delivered in Writ Petition No. 3777/1995 and other connected group, delivered on 9-9-1998and contend that the said judgments upheld the view that in the case of unaided private schools, approval to the appointment of teachers by the Education Officer is not at all required and therefore, the condition of approval for at least one year in the impugned communication dated 13-4-1998 is not applicable to the teachers who are appointed in unaided primary schools which are run by the private managements. In view of this, all such teachers working in unaided private primary schools are required to be admitted to the Postal D.Ed. Course, without taking into consideration the impugned communication dated 5-11-1997 and 13-4-1998.
RESPONDENTS OPPOSITION
6. The learned Asst. Government Pleader has opposed the challenge to the impugned communications and also the maintainability of the petitions. At the outset, the learned Assistant Government Pleader submitted that a writ of Mandamus cannot be sought by the petitioners for a direction to approve their services as primary teachers, though they do not hold the requisite qualifications, on the ground that :---
(a) no writ giving directions contrary to the statutory provisions can be issued; and
(b) while the petitioners themselves have contended that approval to the appointment as teacher by the Education Officer is not a statutory requirement, a writ for the same directions cannot be sought for by them.
It is further urged before us by the learned Assistant Government Pleader that impugned communications do not suffer from any vice of being arbitrary, illegal or unconstitutional and the Government has the powers to impose certain reasonable restrictions while allowing general admission to certain course and so long as these restrictions do not violate any statutory provisions, no interference is called for in such policy matters by this Court under Article 226 of the Constitution of India.
It is also urged before us that this Court (Mane & Kochar, JJ.) in its judgment dated 9th September, 1998, has not laid down the law, as contended by some of the petitioners---that no approval is required to be granted to the appointments of primary school teachers who are working in private unaided schools---and this Court has merely relied upon the submissions made by the respective counsel for the petitioners in that case and the stand of the Government is not reflected in the said judgment. Under such circumstances, the judgment cannot be relied upon by the petitioners and more so, when the Government has already decided to seek a review of the said judgment dated 9th September, 1998.
7. The submissions made by the learned Assistant Government Pleader on behalf of the State Authorities have been adopted by the learned Counsel appearing for the respective private school managements and Zilla Parishads.
CODE, ACT AND RULES GOVERNING TEACHERS APPOINTMENTS
8. So as to provide for compulsory primary education and make better provisions for the management and control of primary education, the Bombay Primary Education Act, 1947 was enacted and it has been extended to Bombay area of State of Maharashtra, excluding the Greater Bombay. After Vidarbha and Marathwada regions were merged in the State of Maharashtra, it is not clear from the provisions of the said Act, whether it has been extended to these areas of the State of Maharashtra. The learned AssistantGovernment Pleader made a categorical statement that the authorities are not aware of any such Government Resolution or Notification issued by the State of Maharashtra, extending the said Act to the areas of Vidarbha and Marathwada, as these areas were not part of the State of Maharashtra when the Bombay Primary Education Act was brought into force in the year 1947.
9. The management of the primary, secondary and higher secondary education was initially covered by the Secondary Schools Code which was a compilation of Government Resolutions, circulars and letters issued from time to time. This Code was also amended by passing different resolutions. In the case of Tikaram v. Mundikor Shikshan Prasarak Mandal, : [1985]1SCR339 , the Supreme Court has expressed a view that the orders passed by the authorities under the Code could be challenged in a writ petition under Article 226 of the Constitution of India though the Code is non-statutory in character and subsequently, this Court, in the case of K. Jahangir Farokh, : AIR1991Bom16 , held that the Secondary School Code is a part of Public Law of the Land and such Code binds the school. It was further held that contravention of any rule of the Code can be challenged before the High Court in a writ petition under Article 226 of the Constitution of India. It is further pertinent to note that Rule 4(1)(f) and 4(2)(d) of the Maharashtra Employees of Private Schools Rules, 1981 (herein-after referred to as M.E.P.S. Rules for brevity) provide that it shall be the responsibility of the management of the school to observe the provisions of the Secondary School Code and other orders issued by the Government or Director from time to time in respect of the academic matters. It is, therefore, clear that observance of the rules of the Secondary School Code has been made as a mandatory duty of the School Head as well as Management. Rule 3 of the Code sets out conditions for recognition of Schools and it is necessary to reproduce following clauses of Rule 3.2.
(5) The education imparted in the school is considered by the appropriate authorities to be satisfactory in all respects. All the members of the teaching staff are suitable, possess the prescribed qualifications, are sufficient in number and the school doesn't employ any member notified as unsuitable for employment by the Deputy Director or Director under Rules 77.9 and 77.11.
(12) The school has adopted for its staff the conditions of service as prescribed by the rules in this Code or as may be laid down by the Government from time to time.
(14) The school undertakes to abide by such orders relating to any of the above conditions or to the working of the school of its hostel, as may be, issued by the Government, either generally or in specific cases from time to time.
Rule 4 provides that the recognition of schools shall be continued provisionally from year to year subsequent 4 years by the appropriate authority after their first year of recognition, provided they continue to fulfil the conditions of the recognition laid down in Rule 3 and after the period of five years, they may be considered for permanent recognition by the Deputy Director provided they continue to fulfil the conditions laid down in the said rules.
10. As the State Government felt expedient to regulate the conditions of recruitment and service of employees in certain private school in the State, with a view to provide such employees security and stability of service, to enable them to discharge their duties to the pupils and the guardians inparticular and the institution and society in general effectively and efficiently, the State framed the Maharashtra Employees of Private Schools (Conditions of Service) Regulations Act, 1977 (hereinafter referred to as M.E.P.S. Act for brevity) and as provided under section 16 of the said Act, Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as M.E.P.S. Rules for brevity) were framed. The said Act applies to the whole State of Maharashtra and it has been brought into force vide order dated 15th July, 1981. Section 3 of the said Act states that the provisions of the Act shall apply to all private schools in the State of Maharashtra whether receiving any grant in aid from the State Government or not. Section 4 empowers the State Government to make rules providing for the minimum qualification for recruitment (including its procedure, duties, pay, allowances, post-retirement and other benefits and other conditions of service and for reservation of adequate number of posts for members of backward classes). Section 5 of the said Act sets out obligations on management of private school and it states that management shall, as soon as possible, fill in the manner prescribed every permanent vacancy in a private school by an appointment of the person duly qualified to fill in such vacancy.
Rule 2(k) sets out the definition of 'trained teacher' which means, a teacher who has secured a professional certificate, a diploma or a degree recognised by the respondents which qualifies him for a teaching post in a school and as per the section 2(20) of the M.E.P.S. Act, 'Private school' means, a recognised school established or administered by a management other than the Government or a local authority.
Rule 6 of M.E.P.S. Rules set out the qualifications for teaching and non-teaching staff to be appointed in primary schools, secondary school, junior colleges and junior college of education and these qualifications have been specified in Schedule 'B' annexed to the said Rules. However, the first proviso to the said rule enables the Education Officer to allow the management to appoint an untrained science graduate for teaching Maths and Science subjects or untrained Arts and Commerce graduate for teaching other subjects in secondary schools in exceptional circumstances such as non-availability of trained graduates and such appointments shall be allowed on year to year basis on the clear understanding that they shall have to obtain training qualification at their own costs and further subject to the condition that their services shall be liable for termination as soon as trained graduate teachers become available. Clause 1 of Scheduled 'B' states that the appointment of primary school teachers (other than subject teachers, training teachers) shall be made by nomination from amongst candidates who have passed S.S.C. or Matriculation Examination or Lonsdale Examination or any other examination recognized as such by Government and (emphasis to the word 'and' is ours) the Primary Teachers Certificate Examination or Diploma in Education Examination or Diploma in Education (Principal Primary of two years duration). It has been further provided that :---
(a) primary school teachers whose date of appointment as such teacher in service of Z.P. or Municipal School Board or Municipal Council or Municipal Corporation or recognized private schools, is 15th October, 1996 or any prior date, are exempted from clearing S.S.C. and training qualification;
(b) primary school teachers recruited prior to 30th June, 1972 and who are possessing academic and training qualification according to the rulesin force at the time of their appointment are exempted from S.S.C. and training qualification and;
(c) those who are recruited after 30th June, 1972 and who do not possess S.S.C. and training qualification should acquire the same before June, 1985.
This time limit of June, 1985 has been subsequently extended by the Government from time to time.
It is thus clear that M.E.P.S. Rules provide that a person who is appointed to the post of primary school teacher must have passed S.S.C. examination or its equivalent and Primary Teachers Certificate Examination or Diploma in Education Examination. The rules make exception in respect of these qualifications only for those teachers whose date of first appointment is 15th October, 1996 or prior to that. Similarly, primary school teachers recruited prior to June 30, 1972 and who were possessing academic and training qualifications, according to the rules in force at the time of their appointment, are also exempted from S.S.C. and training qualification and those who have been recruited after 30th June, 1972 and who do not possess these requisite qualifications were required to obtain the same before June, 1985 or any time thereafter, as announced by the State Government. In Schedule 'C' of the M.E.P.S. Rules, the pay scales of primary school teachers have been set out and a specific pay scale has been provided to untrained primary teachers as well. The definition of the 'Trained Primary Teachers' has not been provided in M.E.P.S. Rules and we may safely rely on the definition as provided in the Secondary School Code which has been reproduced hereinabove.
CONCEPT OF APPROVAL TO APPOINTMENTS
11. The M.E.P.S. Rules did not provide for an employment of an untrained teachers, after the said rules were brought into effect and certain protection has been given to such untrained teachers who were in service till a particular date and that the teachers who were recruited after 30th June, 1972, were required to obtain training qualification within a prescribed period. It appears that the Government has laid down a policy that no untrained teacher be appointed in unreserved vacancies in primary school after 31-1-1969 and in case of reserved vacancies, if sufficient number of trained teachers were not available, to fill in the 34% reserved vacancies, untrained S.S.C. candidate may be selected and appointed as teacher, on a specific condition that they would get themselves trained on their own costs, within a period of four years from the date of initial appointment. It appears that the Government was informed regarding the difficulties being faced by the schools run by the Zilla Parishads, Municipal Councils/Corporations and private managements for the appointment of trained primary teachers against reserved seats, in schools which are in Hilly Areas, Tribal Areas and inaccessible areas either due to non-availability of trained teachers or even if trained teachers were available they were not willing to work in such remote areas. The Government, therefore in its wisdom, appears to have issued administrative orders, allowing the concerned schools to recruit untrained primary teachers, in such areas and against such reserved seats with a condition that these teachers will obtain the requisite training qualifications viz. Diploma in Education within a prescribed period. The school authorities, therefore, resorted to the appointments of such untrained primary teachers and these appointmentswere approved by the concerned authorities on their understanding that the appointments were made due to exigencies/difficulties being faced by the school management and on the condition that such appointments will be either on year to year basis or subject to the teachers acquiring the requisite training qualification within a specified period.
12. Coming to the basic issue regarding approval to the appointment of the teachers by the Education Officer, it is required to be noted that Secondary School Code, M.E.P.S. Act and/or M.E.P.S. Rules do not specifically provide for such approval being granted by the Education Officer or by any authority created thereunder. However, the scheme of the Code, M.E.P.S. Act and the M.E.P.S. Rules, contemplates a direct supervision by the Education Officer on the strength of the teaching and non-teaching staff in the schools, appointments to be made in the prescribed manner, appointment orders to be issued in the prescribed format, appointments to be made of backward class teachers as specified in Rule 9 of the M.E.P.S. Rules and teachers to be given prescribed pay scales. It is provided in Rule 8(2) of the M.E.P.S. Rules that after the appointment of the teaching as well as non-teaching staff is made, names, particulars, qualifications and experience of the persons so appointed shall be forwarded within a fortnight from the date of each such appointment to the Education Officer and in the case of Junior College of Education to the Deputy Director of Education. It is thus clear that a duty is cast on the Education Officer or the Deputy Director of Education to ensure that teachers with requisite qualifications are appointed and the reservation policy is duly followed by the school managements and that such appointments are made only against existing vacancies as per the sanctioned staffing pattern, in the prescribed manner. It must, therefore, be presumed that the scheme of the Code, the Act and the Rules envisage and imply the action of approval by the Education Officer in respect of the appointment of the school teachers. In the case of D.G. Ruparel College v. State of Maharashtra 1998(2) C.L.R. 402, a similar issue viz. approval to the appointment of teachers by the Education Officer came up for consideration and in para No. 5 of the said judgment, a Division Bench of this Court observed as under :
'5. Rule 9 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, which covers appointment of staff, does not contain provisions with regard to the time within which the Management of the School/Junior College has to apply for approval of the appointment, nor does it contain any provision with regard to the time within which the First Respondent is required to signify its approval or disapproval. In the absence of express provision in the Rule, we must construe it to mean that both the management and the First Respondent must act within reasonable time. We are of the view that a period of two months should be considered as reasonable time for action at each end. In other words, the appointing School must apply to the First Respondent within two months for approval, and it shall be the duty of the First Respondent to grant or refuse approval within two months of the receipt of such application. It is pointed out by the learned Counsel for petitioner and second respondent, that in the stricto senso, the rules do not contemplate an approval being taken every time an appointment is made, it is only the Officers of the First Respondent, who are ultimately the authorities to release the grant, who deem to be enforcing such a view. Perhaps, there may be justification to say that the approval of the Education Department is necessary for all appoint-merits, in view of the fact that the Education Department has to ensure that only teachers holding the prescribed qualifications are appointed by the grant aided schools. This, of course, does not mean that the approvals can be indefinitely delayed, causing disruption of the academic work of the schools which is far more important for the teachers and the student community than the administrative work of approval of the post. Hence, we are inclined to hold that it shall be the duty of the First Respondent to grant or refuse approval to the appointment of a teacher within a reasonable period say, two months, unless there are overriding circumstances. Though, at this point of time, we are not inclined so to hold, it might perhaps be necessary for this Court at some point of time, to hold that non-communication of its approval by the Department, within a reasonable time, shall raise a presumption of approval of the post.'
13. We are, therefore, of the view that an appointment of a teacher either in the primary school, secondary school, junior college, etc. is required to be approved by the Education Officer and the Education Officer while discharging this duty performs an implied statutory function under the provisions of the M.E.P.S. Rules.
14. So far as the case of untrained primary teachers like petitioner is concerned, the approval by the Education Officer was imperative because the petitioners do not fulfil the requisite qualifications for appointment as teachers in primary school, in view of the provisions of Rule 6 read with Schedule 'B' of the M.E.P.S. Rules and the State Government has from time to time allowed appointments of such untrained primary school teachers only in certain circumstances/exigencies. The fact that a separate pay scale has been provided for untrained teachers under the M.E.P.S. Rules does not, by its own, mean that the Rules have contemplated the appointment of un-trained primary school teachers and said pay scales have been provided solely because some class of untrained teachers who were in service on the cut off date were either exempted from acquiring such training qualifications or given a specific period to acquire such training qualifications. The petitioners do not fall in any of these categories. It is also required to be noted and mentioned emphatically that none of the petitioners are either appointed by a specific order against a reserved vacancy (as a trained teacher was not available against such vacancy) or they are appointed in a school in Hilly Area, Tribal Area, in remote area, in Ashram schools or on Compassionate basis.
15. The Government of Maharashtra issued a circular on 20th April, 1989 and reiterated the requirements of M.E.P.S. Rules that only trained teachers are required to be appointed in the schools. Though this circular was in reference to the grant in aid being provided to the private schools, it reminded the authorities concerned as well as the managements that only trained teachers were required to be appointed in the schools. It was binding on the management to seek approval for the appointment of untrained teachers who were already in the employment. As it was noted by the Government that certain officers were still granting approval to the appointments of untrained teachers, the Government issued another Circular dated 12th December, 1995 and again reminded that untrained teachers shall not be appointed in the schools. The Government went to the extent of saying that officers who grant approval to appointment of such untrained teachers would be failing in their duty and requirement of qualifications and other eligibilitycriterion was required to be scrupulously followed while appointing school teachers. Even after these circulars, it appears that the private managements continued to appoint untrained school teachers in spite of the fact that such appointments were not either on compassionate grounds or in Ashram Schools against the reserved vacancies so as to clear the backlog of reservation, in schools located in Hilly Areas, Tribal Areas and areas which were remote or inaccessible. Some Officers who were vigilant enough to follow the Government instructions and the M.E.P.S. Rules, did not approve such appointments of teachers like petitioners, whereas, some other officers who were either liberal or acted contrary to the rules and instructions, granted approvals. The Government has, therefore, issued another administrative order dated 23rd October, 1998 and further emphasized the necessity to ensure that only trained teachers are appointed in the schools and appointments of untrained teachers shall not be allowed by the Education Officer or any other authority concerned in that regard. Both these circulars, dated 12-12-1997 and 23-10-1998 are applicable to the private schools which are aided as well as unaided. Failure on the part of the concerned officer either to follow the requirement of the M.E.P.S. Rules or implement these circulars issued by the State Government does not create a vested right in favour of the teachers who were untrained when they were appointed and their appointments must be held per se illegal unless it is established that any such appointment was made in any exceptional circumstances as set out hereinabove.
16. We, therefore, do not accept the proposition that the action of approval in respect of the appointment of the petitioners was not contemplated and was not a legal requirement at all. In fact, the petitioners who were not entitled to be appointed as teachers and they could not have been validly appointed as teachers unless their appointments were approved for a specific reasons, as stated hereinabove, by the Education Officer. They have continued to remain in such schools may be at the mercy or in connivance with the private schools management (None of the petitioners are teachers in the schools run by the Zilla Parishad or any other local body).
17. When the petitioners before us do not fulfil the requisite qualifications for appointment as teachers, no writ or direction can be issued by this Court against the authorities to grant approval to the appointments of the petitioners as primary school teachers. Our view is buttressed by the judgment of the Supreme Court in the case of State of U.P. and others v. Harishchandra and others, : (1996)IILLJ627SC . Relevant observations of the Apex Court could be reproduced as below :---
'Under the Constitution, a mandamus, can be issued by the Court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and said right was subsisting on the date of the petition. The duty may be enjoyed by the mandamus may be one imposed by the Constitution of India or a statute or by Rule or Rules having a force of Law. But no mandamus can be issued to direct the Government to refrain from enforcing the provisions of law or to do so something which is contrary to the law.'
THE POSTAL D.Ed. SCHEME
18. The Government of Maharashtra introduced a scheme what is called as Correspondence-cum-Intensive Vocational Course for Diploma in Education for Primary Teachers vide its Notification dated 4th October, 1973, with anobject of providing avenues for acquiring training qualifications to the untrained teachers who were already appointed. The Government thought it fit to adopt some non-traditional measures for providing training facilities to these teachers so as to overcome the difficulties of training of large number of in service untrained and semi-trained primary teachers. The correspondence course in Diploma in Education was introduced w.e.f. 1-2-1974 and the duration of the course for untrained primary teachers was of two years and for the semi-trained teachers was of one year.
19. By the Government Resolution dated 26th February, 1972, the Government had extended upto 30th June, 1987 the time limit to acquire the D.Ed. qualifications for those teachers who were appointed between 30th June, 1972 to 26th June, 1981 and the said time limit was extended upto 30th June, 1995 by the Government Resolution dated 1987. Accordingly, the State Government continued the postal D.Ed. Scheme as incorporated from the year 1974-1975 and every year it announced a scheme for admission to Postal D.Ed. Course. The scheme which was brought into force in the year 1995-1996 stated that the Untrained Assistant Primary Teachers in Primary Schools will be given admission to correspondence course in following circumstances only :---
(1) such Untrained Primary Assistant Teachers who are appointed on compassionate basis and whose appointments are approved by the concerned competent authority;
(2) such Untrained Primary Assistant Teachers, appointed by the Zilla Parishads, as per the Government Order dated 26th January, 1991 and 13th September, 1993, due to non-availability of trained teachers in inaccessible and Hilly Areas;
(3) such reserved category Untrained Primary Assistant Teachers who have been appointed for clearing the backlog of reserved trained teachers and whose appointments are approved by the competent authority;
(4) such Untrained Primary Assistant Teachers who are appointed in private recognized or Government Ashram Schools and whose appointments are approved by the competent authority;
(5) such reserved or unreserved category Untrained Primary Assistant Teachers who are appointed in the private recognized aided/unaided primary school, Zilla Parishad Schools, Municipal Council Schools and Non-government Secondary Schools for 5th to 7th Standard of Urdu, Sindhi, Telgu and English medium and whose appointments are approved by the competent authority; and
(6) such Untrained Primary Assistant Teachers appointed prior to 11-11-1994 in the recognized aided/unaided primary school located in Hilly and inaccessible areas of the State.
20. Clause (3) of the said condition came to be challenged before this Court in the case of Sanjay Namdeo Mutha v. Director Education, Research and Training Institute, Pane and others, : 1996(1)BomCR656 , and the said Clause (3) was held to be invalid and unconstitutional. A Division Bench of this Court (Deshmukh and Mutalik, JJ.) set aside Clause (3) of the above conditions for admissions to the correspondence D.Ed. Course in the academic year 1995-1996 and held that Untrained Primary Assistant Teachers from all categories and whose appointments were approved by the competent authorities were eligible for admission to the Postal D.Ed. Course. This Court also further observed that it was reasonable that the review of the correspondence D.Ed. Course qua the number of Untrained teachers shouldbe taken and it was directed that the course shall not be closed abruptly overlooking the interest of large number of untrained teachers. This judge-merit was admittedly challenged before the Apex Court at the instance of the Government and the Special Leave Petition came to be rejected.
21. A perusal of the judgment of this Court in the case of Sanjay Namdeo Mutha (supra) reveals that this Court has taken a judicial note of the fact that the appointment of the Untrained Teachers in Primary Schools was required to be approved by the authorities of the Education Department. In para No. 2 of the said judgment, this Court has observed as under :--
'But the correspondence D.Ed. Course is provided for only in respect of the teachers, who are already in service, appointed by the recognized primary school and whose services are approved by the concerned authorities of the Education Department.'
Even the conditions for admission set out in the scheme of 1995-1996, reproduced hereinabove, emphasize the necessity of approval by the concerned competent authority in respect of the appointment of the untrained primary assistant teachers who were seeking admissions to the Postal D.Ed. Course. Only in respect of the recognized aided and unaided primary schools located in Hilly or inaccessible areas of the State, conditions of approval for such appointments by the competent authority has not been mentioned in those conditions and admittedly, none of the petitioners before us belong to this category.
22. We are, therefore, of the considered view that this Court in the case of Sanjay Namdeo Mutha (supra) not only took a judicial note of approval being granted to the appointment of the untrained teachers but also accepted such a condition of approval as a requirement for admission to the Postal D.Ed. Course. We are told that after the challenge to the said judgment failed before the Apex Court, the Government, has continued the scheme as it is, except the impugned Clause (3) which was set aside by this Court and the admissions to Postal D.Ed. Course were made open to all the untrained primary teachers whose appointments were approved by the competent authority. Therefore, by the impugned communications dated 12-11-1997, the Government has only reiterated the conditions that were set out in the scheme of the year 1995-96 and vide communication dated 13th April, 1998, only clarifications have been given, as rightly stated by the Assistant Government Pleader. In fact, if the communication dated 12-11-1997 is read properly it reveals that there was no dilution in the requirement of the approval and if a teacher continued in employment for few years, his appointment was required to be approved for every year as an untrained teacher. As a large number of untrained primary teachers whose appointments were not approved during every academic year by the competent authority, for some reasons or the other, but were approved at least once, were likely to loose an opportunity of acquiring training qualification and even such solitary approval granted in their favour required to be considered sympathetically and with benevolence in favour of such untrained teachers. The Government has clarified in its affidavit that there was an agitation on behalf of such teachers and therefore, the Government decided to dilute the condition in respect of approval every year and insisted that such an appointment of untrained teacher should have been approved at least for one year by the competent authority. We do not see any illegality committed by the authorities in issuing the subsequent communication dated 13th April, 1998 and the Government cannot be held to have been acted arbitrarily or unconstitutionally by laying down the condition of at least one years' approval to the appointment for admission to the Postal D.Ed. Course.
23. The learned Assistant Government Pleader has rightly invited our attention to the judgment of the Supreme Court in the case of Krishnan Kakanth v. State of Kerala and others, : AIR1997SC128 of the said judgment, the Apex Court has observed as under :---
'To ascertain the unreasonableness and arbitrariness in the context of Article 14 of the Constitution of India, it is necessary to enter upon in exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial for a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose of which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by the vice of discrimination or infringes any statute or provisions of Constitution of India, the policy decision cannot be struck down. It should be born in mind that except for the limited purpose of contesting the better policy in the context of illegibility and unconstitutionality, the Court should avoid embarking on uncharted ocean of public policy.'
In the said judgment, the Apex Court further observed that unreasonableness on restrictions is to be determined in an objective manner and from the stand point of interest of general public and not from the stand point of interest of the persons upon whom the restrictions are imposed or abstracted consideration and the restrictions cannot be considered to be a unreasonableness merely because in a given case it operates harshly. In the instant case, the said observations are squarely applicable inasmuch as the Government has imposed some restrictions for admission to Postal D.Ed. Course and an Untrained Teacher whose appointment has not been approved at least for one year is held to be ineligible for admission to the said course. When such a person is not eligible to be appointed as a teacher in view of the Rules for appointment and the qualifications laid down thereunder, he cannot claim to have a vested right to seek admission to Postal D.Ed. course, which has been initiated by the Government, by way of a specific scheme and more so, this Court in the case of Sanjay Namdeo Mutha (supra) has taken a judicial note for the condition of approval and accepted that as a condition precedent for admissions to the said Postal D.Ed. Course. We find no valid reason to interfere with the decision of the government as communicated vide letters dated 5-11-1997 and 13-4-1998.
24. The reliance of the petitioners on the judgment of this Court in W.P. No. 2297/1995 and W.P. No. 3777/1994 in support of their contention that so far as the private unaided schools are concerned, the requirement of approval cannot be insisted upon, is without merit. A perusal of the said judgments makes it clear that either the Government had not submitted its views before the Court or the Government did not have an opportunity to present its case. In this regard, we may usefully reproduce the relevant portions from the said judgments.
WRIT PETITION No. 3777/1994
'The learned Counsel for the petitioners submit that there would arise no question of approval to the appointments of the petitioner as an Assist-ant Teacher since initially institution in which they were working were not approved for the purpose of grant-in-aid. In that view of the matter, we find that each of the petitioner would be entitled to the benefit given in the relevant circular of the State Government dated 30th March, 1994.'
WRIT PETITION No. 2297/1995
'The petitioners specifically stated that they are working as primary teachers in a recognised school. There is nothing on record to show whether their appointments were approved or not, but it can be presumed that the appointments were approved since they are in continuous service in a recognised school.
In view of the Government Resolution dated 13th April, 1998, the petitioners are eligible for admission to the postal D.Ed. Course and they are entitled to get themselves qualified till 1999-2000. We, therefore, allow the petitions and direct the respondents to allow to the petitioners to appear for Postal D.Ed. Course from 1998-1999 or 1999-2000. The rule absolute accordingly. There shall be no orders as to costs.'
In fact, when these petitions were heard by us on 9-10-1998 and when our attention was invited to the said judgments, we called on the State Government to file its reply and make it clear its stand regarding the condition of approval in respect of the school teachers who are appointed by the private unaided school managements and accordingly, an affidavit came to be filed before us, stating in no uncertain words that the appointments of teachers in all schools, whether aided or unaided run by the private managements, are required to be approved by the competent authority and the Government has decided to approach this Court for a review of its judgment dated 2-9-1998 and 9th September, 1998. Even if it is presumed that the Government gave a consent to the submissions of the petitioner therein and on the said concession given by the Government this Court delivered the judgment, as contended by the learned Counsel for petitioners that condition of approval to the appointment of teachers in private unaided schools did not exist or was unwarranted, cannot be accepted. When it comes to the applicability of the Act, Rules and the Government instructions framed from time to time, there cannot be a distinction between private aided and unaided schools. Even otherwise, section 3(1) of the M.E.P.S. Act, as has been referred to herein-above, makes it abundantly clear that the provision of the said Act shall apply to all private schools in the State of Maharashtra whether receiving any grant-in-aid from the State Government or not. The same is the scheme of the Code, in as much as, if the private schools fail to comply with the requirements of the Code, Rules or Act in respect of the appointments of the teachers, the competent authority has the powers to withdraw/cancel the recognition.
A mere concession, even after it is presumed to have been given while this Court delivered its judgment in W.P. Nos. 2297/ 1995 and 3777/1997 cannot and does not bind the State Authorities, if the said concession is contrary to the law. In the instant case, section 3(1) of the M.E.P.S. Act as well as Rules of the Code imply that the appointments of the teachers in private unaided schools are required to be approved, as the provisions of the Act, Rules and Code are applicable to these schools as well. In the case of Devi Prasad v. Regional Provident Fund Commissioner, Punjab, Haryana, HP and Union Territory Chandigarh, : (1999)ILLJ1SC , the Apex Court, inter alia, held that concession on a question of law cannot bind the authorities for all time to come. In the case of (K. Krishnamacharyulu v. Sri VenkateswaraHindu College of Engineering and others}, A.I.R. 1998 S.C. 295, the Apex Court, inter alia, observed thus: --
'In view of the long line of decisions of this Court holding that when there is an interest created by the Government in an institution to impart education, which is a fundamental right of the citizens, the teachers who teach the education get an element of public interest in the performance of their duties. As a consequence, the element of public interest requires to regulate the conditions of service of those employees on par with the State Employees.'
We must also keep in mind that as per the Government policy, unaided private schools become aided in phases, may be in a period of about five years from the starting of such schools and if it is presumed that the appointments of teachers in such unaided schools are not required to be approved by the competent authority, it cannot be ruled out that the school authorities will resort to appointing unqualified teachers or untrained teachers and give a go by to the policy of reservation. This will frustrate the provisions of M.E.P.S. Rules as well as Articles 15(4) and 16(4) of the Constitution.
25. As has been noted above, the officer concerned went on granting approvals to the appointments of the untrained teachers in private schools in spite of the direction vide orders, and/or communications dated 28-4-1989 and 12-12-1995 and in spite of provisions of M.E.P.S. Rules, as per which such untrained teachers were not eligible to be appointed. This carelessness on the part of the officers concerned has resulted in a large number of untrained teachers being appointed and continued in private schools. The present litigation is an outcome of this careless attitude on the part of the officers concerned who were responsible for approvals to the appointments of teachers. The Government, therefore, issued a further warning to such officers vide impugned communication dated 5-11-1997 as well as the fresh communication on date 23-10-1998. We are not sure whether a right message will go to the concerned officers and they would meticulously follow the instructions of the Government and refrain from granting approvals to the appointments of the untrained teachers in private primary schools in future. If these officers had acted in time and communicated their decisions, on the proposals for approval, the private managements, perhaps, would not have continued these teachers. However, in most of the cases we are deciding today, the competent authority has not communicated its decision regarding either approval or rejection to the proposals sent by the private managements in respect of the appointments of such untrained teachers. This lethargy on the part of the competent authority has given rise to a mushrooming growth of litigations before this Court, as has been experienced by us. It is, therefore, necessary to direct the State Government to issue fresh instructions to the officers concerned, setting out a time bound programme for deciding the cases of approval, received by the competent authority and failure to do so would entail disciplinary action against such officers.
26. The Deputy Secretary, School Education Department, Government of Maharashtra, in his affidavit has stated that the approximate number of vacancies of the primary teachers occurring every year is 10,000, whereas, intake capacity of D.Ed. Colleges (Regular D.Ed. Course) in the State is 40,000 and so far as Marathi medium is concerned, recruitment of teachers everyyear is roughly 8,000 as against the intake capacity in D.Ed. Colleges of 11840. It has been further stated that the result of D.Ed, Course is about 90% and the number of unemployed D.Ed. candidates registered with the Employment Exchanges in different parts of the State is around 37,000. Civil Application No. 6416/1998 has been filed in W.P. No. 1863/1998, by one Shri Kishan Muli, who claims to be the General Secretary of the Maharashtra Shikshak Sangathana, which is a registered association of the teachers in the State of Maharashtra. In the said Civil Application, the contentions of the Deputy Secretary, School Education Department have not been denied but it has been stated that about 4000 posts of primary teachers under Zilla Parishads in Marathwada Region were vacant as in May 1998. It has been further contended that some of these posts have been filled in by August 1998, through Selection Committees working under the Collectors of the respective districts. In some of the districts under jurisdiction of this Bench viz. Aurangabad, Beed, Jalna, Latur, Nanded, Osmanabad and Parbhani, there are about 50 D.Ed. colleges which run the regular D.Ed. Course and these are in addition to the Postal D.Ed. Courses. The Government of Maharashtra, as observed hereinabove, has already extended the Postal D.Ed. Scheme till the year 2001. Taking into consideration the large number of unemployed D.Ed. candidates and most of whom are registered with the Employment Exchanges, we do not find it appropriate to allow the private managements to continue with the appointments of the untrained teachers any further. Even in reserved categories, in the Hilly Areas/Tribal Areas/ Inaccessible Areas, there are trained candidates available for being appointed as permanent teachers and the Government has rightly, by its communication dated 12-12-1995, 5-11-1997 and 23-10-1998, issued strict instructions to the Education Officers not to approve such appointments of untrained teachers. The untrained teachers, who have been continued by the private schools without there being any approval to their appointments, do not have vested right for admission to Postal D.Ed. Course unless they satisfy the conditions laid down in the Scheme for Postal D.Ed. Course, as framed by the State Government. It also needs to be noted that none of these petitioners have been appointed specifically against a reserved category seat as the reserved category candidates were not available. We are, therefore, satisfied that the petitions are devoid of merits and the petitioners challenge to the impugned communications dated 5-11-1997 and 13-4-1998 must fail.
27. In the result, the petitions are rejected. However, we direct the State Government through the Secretary, Ministry of Education, to issue the following specific directions to the Education Officers/Deputy Directors forthwith.
(a) The cases of approval of the appointment of school teachers shall be decided and the decision be communicated to the respective management/institution within a period of two months from the receipt of the said proposal, by the competent authority.
(b) In case the approval proposal could not be decided within a period of two months, the next higher authority on a specific request with reasons, may grant an extension of one month to decide the same.
(c) In case the approval proposal is not decided within a period of two months or three months, as the case may be, the concerned appointment or appointments may be deemed to have been approved, if such appointment or appointments is or are in accordance with the provisions of the M.E.P.S. Act, M.E.P.S. Rules and the Government Resolutions issued from time to time.
(d) No primary school shall appoint any untrained teacher or any teacher contrary to the provisions of the M.E.P.S. Act, M.E.P.S. Rules and the Government Resolutions issued from time to time and if such appointments are made or continued, the recognition of the concerned school(s) shall stand with drawn/cancelled by the competent authority, as provided for in the Code or in the Bombay Primary Education Act, 1947.
(e) The officers who fail to comply with the above mentioned schedule for deciding the approval case(s) or grant approval to appointment or appointments contrary to the provisions of the M.E.P.S. Act, M.E.P.S. Rules and the Government Resolutions issued from time to time, shall be liable for disciplinary action on account of dereliction in duty as per the Service Rules applicable in that regard.
The State Government to submit a compliance report to the Additional Registrar of this Court, within two months.
28. Order accordingly.