Judgment:
D.B. Bhosale, J.
1. This writ petition under Article 226 and 227 of the Constitution of India is directed against the judgment and order dated 8.10.1999 rendered by the School Tribunal in Appeal No. 9 of 2006, by which the appeal filed by the petitioner under Section 9 of the Maharashtra Employees of Private School (for short 'MEPS Act'), has been dismissed. The petitioner, in the appeal, had challenged his termination order, which was passed on the ground that he was not holding the prescribed qualification. The school tribunal after having considered overall facts and circumstances of the case and the relevant provisions of MEPS Act and the Rules framed thereunder dismissed the appeal. In paragraphs 17 and 19 the school tribunal observed thus:
17. .... In the present matter, the appellant was untrained and the Deputy Director of Education has given relaxation to his qualification and accorded approval to his appointment on year to year basis only. Therefore, the appellant cannot acquire status of permanent teacher, even though the management of the respondent No. 1 has given his appointment order dated 11.6.1992 with effect from 15.6.1992 on probation for a period of 2 academic years 1992 to 1994. Because the said appointment order is against the provisions of Section 5(1) of MEPS Act. Even though appointment order dated 11.6.1992 is given by the respondent No. 1 to the appellant on probation for the period of 2 years the Deputy Director of Education has approved it from year to year purely on temporary basis. It is also pertinent to note that the appellant was appointed temporarily for 2 academic years 1990-91 and 1991-92 by issuing 2 separate orders. But as soon as period of appointment orders mentioned in the said appointment orders expired, at the same moment, the services of the appellant automatically came to an end. Because in case of temporary appointment order, even notice under Rule 28(1) of MEPS Rules 1981 is not required to be given by the management to the teacher after expiry of period of temporary appointment. Subsequently the appointment order dated 11.9.1992 on probation for the period of two years with effect from 15.6.1992 was issued. But the Deputy Director of Education has granted approval to his appointment from year to year basis purely on temporary basis. Therefore, the appellant does not acquire permanent status. In 1997 (3) Mh LJ 697, Anna Manikrao Pethe v. Presiding Officer, School Tribunal, Aamarawati and Ors. the Hon'ble Division Bench of Bombay High Court bench at Nagpur, has clearly held that temporary appointees are not entitled to claim permanent status unless such permanent vacancies are filled in as per Section 5 of the Act, temporary appointees can have no grievance. Therefore, in view of the above said ruling, it is clear that, the appellant was not appointed by the management as an Asst. Teacher in the Junior College of Commerce as per Section 5 of the MEPS Act. As the appellant was not only qualified to be appointed as an Asst. Teacher in Junior College, because he was not possessing B.Ed. degree. Therefore, in view of Schedule 'B' III (1)(d), the appellant cannot acquire permanent status as a teacher. 19. In this matter, it is admitted position that Commerce faculty of Junior College has been closed down, and the appellant was juniormost teacher in the said faculty of Commerce, therefore, the management has terminated his services.
2. The factual matrix that may be relevant and necessary for deciding this petition is as follows:
The petitioner came to be appointed as Assistant Teacher in the Junior College, run by respondent No. 1 - institution vide letter dated 11.7.1990. The petitioner was holding the qualification of M.Com and M. Phil at the relevant time. He was assigned the subjects of Commerce, i.e. Secretarial practise and Accountancy. He worked for the entire academic year 1990-91. From 19.6.1991 the petitioner came to be appointed as a full time teacher with effect from 19.6.1991 and he worked for the entire academic year 1991-92. On 11.6.1992 he was appointed as full timer on probation for a period of two years i.e. 1992-93 and 1993-94. Respondent No. 4 - Deputy Director of Education, however, approved the appointment of the petitioner as full time teacher in the junior college for the academic year 1992-93 only. This approval was granted in the untrained teacher pay scale. Similarly, the appointment of the petitioner was also approved for the academic year 1993-94 as full time teacher in untrained scale vide order dated 23.3.1994. Respondent No. 4, however, vide order dated 3.3.1995 refused to grant approval for the academic year 1994-95 on the ground that he was untrained, and he was allowed to continue only till a trained teacher became available. It appears that during the aforesaid period the petitioner secured admission for B.Ed course and passed B.Ed on 24th August, 1995. However, before he could acquire the qualification of B.Ed, respondent No. 3 was rendered surplus in the college in which he was working at the relevant time and he was directed to be absorbed in respondent No. 2 - college and since the trained teacher (respondent No. 3) became available, the petitioner was removed at the end of academic year in 1995. It appears that after getting a degree of B.Ed, the petitioner made some efforts to join respondent No. 2 - college but he was not allowed to resume. It is against this backdrop the petitioner approached the tribunal in appeal under Section 9 of the MEPS Act. The tribunal has dismissed the said appeal vide judgment and order dated 8.10.1999.
3. I have heard learned Counsel for the parties and with their assistance have gone through the entire material on record. Mr. Bandiwadekar, learned Counsel for the petitioner, at the outset, drew my attention to the following documents, namely the undertaking given by respondent No. 2- college dated 6.8.1993 to the institution from where the petitioner did B.Ed and the government resolution dated 6.5.1976, so also to the first proviso to Rule 6 of the MEPS Rules and to contend that it was not open to respondent No. 2 - college to terminate his services on the ground that he was not holding the prescribed qualification. He submitted that an undertaking was given by respondent No. 2 - college stating that they will continue the petitioner till he completes his degree course of B.Ed. He further submitted that in the government resolution dated 6.5.1976 a specific direction was given to all the institutions not to terminate the services of such partially educated teachers, who are otherwise eligible for confirmation on the ground that they did not possess the prescribed qualification contemplated under Rule 6 read with Schedule 'B' of MEPS rules. He submitted that the college has committed grave error of law by terminating the petitioner's services even before he could complete the B.Ed course. He then submitted that having regard to the fact that the petitioner acquired the prescribed qualification and that he was appointed on probation and on a permanent vacancy, he is entitled for the benefit of deemed permanency under Section 5(2) of MEPS Act. On the other hand Mr. Deshmukh, learned Counsel for the respondent - institution vehemently submitted that the petitioner was not possessing the prescribed qualification as contemplated under Section 5 of the MEPS Act read with Rule 6 of Schedule B-III of the MEPS Rules and, therefore, he cannot claim benefit of the deemed permanency under Sub-section (2) of Section 5. He submitted that the petitioner does not comply with basic conditions contemplated under Section 5 of the MEPS Act and, therefore, the order of termination cannot be faulted.
4. The questions that are raised in the petition are whether the petitioner, who was admittedly not holding the prescribed qualification provided for under Rule 6 read with Schedule B-III of MEPS Rules, at the time of his appointment as a full timer on permanent vacancy for the academic years 1991-92, 1992-93 and 1993-94, can claim benefit of deemed permanency, contemplated by Sub-section (2) of Section 5 of the MEPS Act and whether the respondent-institution was right in terminating the services of the petitioner in the face of the undertaking given by them and the Government resolution dated 6.5.1976 even though he was not holding the prescribed qualification at the relevant time?
5. The similar question fell for my consideration in writ petition No. 5556 of 1999. That writ petition was also between an assistant teacher and the very same institution. In that writ petition, which has been decided today, after considering the provisions contained in Section 5 of the MEPS Act and Rule 6 read with the provisions contained in Schedule 'B' of the MEPS Rules, in paragraphs 8, 12 and 13, I have observed thus:
8. A plain reading of Section 5 of MEPS Act shows that in order to claim benefit of deemed permanency under Sub-section (2) of Section 5 of the MEPS Act, a person, who is otherwise eligible to be appointed in a private school, must satisfy three conditions as reflected in Sub-section (1). Firstly, his appointment must be on permanent vacancy; secondly, he must possess the qualification prescribed under Rule 6 read with schedule 'B' of the MEPS Rules; and lastly, his appointment must have been made in the manner prescribed i.e. by due process of selection. In the present case we are not concerned with the last condition. Once an eligible candidate, holding the 'prescribed qualification' is selected by selection process i.e. by competition amongst all eligible and desirous candidates, and who is appointed on a 'permanent vacant post', the management has no option but to appoint such person on probation for a period of two years. It is neither open for the management to appoint him for one academic year or any period shorter than two years probation period, nor it is open for Education Officer to grant approval for shorter period. Such candidate, appointed on probation, shall enjoy status of deemed permanency on completion of two years, unless extension of probation is informed, or termination is ordered. It is also well settled that the appointment of a person not belonging to reserved category, in a post reserved for a particular category, because the candidate of that category is not available, shall be absolutely temporary and on an year to year basis, governed by Sub-rule (9) of Rule 9, although in a permanent vacancy. (see : Priyadarshini Trust v. Ratis Bano : (2007)109BOMLR1663 ). It is thus clear that to claim deemed permanency one must be eligible to hold the post, he must be duly qualified, as prescribed under Rule 6 read with schedule 'B' of the MEPS rules, and the post, in which he is appointed, is a permanent vacant post.
12. A plain reading of Rule 6 shows that it provides for minimum qualifications for the posts of teachers and the non-teaching staff in the 'primary schools', 'secondary schools', 'junior colleges' and 'junior colleges of education'. The first proviso to Rule 6, however, provides for relaxation of qualification of teachers in the 'secondary schools' only. The word 'school' has been defined under Section 2(24), which also means primary school, secondary school, higher secondary school, junior college of education. The distinction is also evident from Schedule 'B', which is divided into three parts. The first part provides qualification for primary teachers, the second part provides qualifications for teachers in secondary schools and junior colleges of education, and the part three provides qualifications for teachers in junior colleges. It is thus clear that there is a difference between 'secondary schools' and 'higher secondary schools', and in any case 'secondary schools' cannot be equated with 'junior colleges/higher secondary schools', insofar as qualifications for teachers is concerned. There would be no justification for the court to read the words 'higher secondary schools' in the first proviso to Rule 6. The language of the statute cannot be construed to suit convenience of the party to the proceedings, particularly when it is not susceptible to any other meaning. The very same submission fell for the consideration of this Court in the Trustees of S.P.R. and Ors. v. Abdul Kaleem and Ors. : 1999(4)BomCR104 . I find support in this judgment of the learned Single Judge for the view that the first proviso to Rule 6 would apply only to the persons teaching in secondary schools. Therefore, in my opinion, respondent No. 1 cannot claim any benefit whatsoever of the first proviso to Rule 6.
13. However, that does not mean that the institutions cannot appoint in junior colleges a person who is not a trained teacher (i.e. 'B.Ed') and that the Education Department cannot relax the qualifications. Clause (1)(d) of Part III of Schedule 'B' of the MEPS Rules makes it clear that if persons possessing the prescribed qualifications referred to in Clauses (a) and (b) are not available, the Director may relax the qualifications on the basis of the merits of each case and the person in whose favour relaxation is allowed shall be appointed purely on temporary basis. Such appointee, however, cannot claim benefit of 'deemed permanency' under Sub-section (2) of Section 5 of the MEPS Act. A person appointed by relaxing the qualification as contemplated by Clause (1) (d) of Part III of Schedule 'B' is not entitled to claim permanency merely because he was assured by the institution that he would be continued till he acquires the prescribed qualifications. Even if there is such assurance or undertaking given by the institutions, such assurance or undertaking would not bind the institution indefinitely and particularly in the cases where the trained teacher becomes available or the workload is not available. In the present case the petitioner-institution has denied that in 1995-96 respondent No. 1 was appointed as full timer in a clear permanent vacancy. It appears that there was reduction in workload and, therefore, he was appointed on clock hour basis.
In the present case admittedly the petitioner was not holding the prescribed qualification till he was removed from the services. He acquired the prescribed qualification only after his termination. It is thus clear that though he was appointed on permanent vacancy he cannot claim deemed permanency under Section 5(2) of the MEPS Act. Merely because an undertaking was given by the respondent-institution to the effect that they would not terminate the services of the petitioner till he acquires the qualification, would not help the petitioner to contend that his termination was illegal. From the facts of the case, it is clear that the services of the petitioner were terminated because the permanent post on which he was appointed was no more available in and after 1995. Respondent No. 3, who was working with some other school rendered surplus there and, therefore, the respondent-institution was directed to absorb him in their junior college. Apart from that it is pertinent to note that the commerce wing, where the petitioner was working, was also closed as sufficient number of students were not available and, therefore, the post on which the petitioner was working at the relevant time was not available after 1995. It may also be noticed that before closing down the commerce wing by respondent No. 2 - college, respondent No. 3 was not absorbed by respondent No. 2 and he was repatriated to his original college since the post on which he was directed to be absorbed by respondent No. 2 did not exists any more. It is against this backdrop, in my opinion, the judgment of the tribunal warrants no interference by this Court. The government resolution relied upon by Mr. Bandiwadekar is also of no avail to the petitioner in view of the fact that the first proviso to Rule 6 of the MEPS Rules does not apply to the teachers of the junior colleges apart from the fact the government resolution cannot run counter to Section 5 of the MEPS Act. Section 5 does not render any support to the petitioner to claim deemed permanency in respondent No. 2 - school. In the result, the writ petition is dismissed. No costs.