D.Y. Chandrachud, J.
1. The petitioners seek to impugn an order dated 1st February, 1996 of the Presiding Officer, School Tribunal, Mumbai. The School Tribunal, by its order, has set aside an order dated 19th April, 1994 passed by the petitioners, terminating the service of the first respondent as an Instructor in the Junior College of Education. A direction has been issued to reinstate the first respondent with back wages after deducting the salary which was earned by the first respondent in a School at Valsad.
2. The First Respondent passed her B.A. examination from the University of Mumbai in 1985 with Psychology and Sociology. The B.A. degree course is an integrated course of three years, and the subjects offered by the first respondent included English (compulsory and optional), Hindi, English Literature, Sociology, Scientific Method Foundation Course, Mathematics, Communication and Child Psychology. The medium of instruction through which the first respondent completed her B.A. was English. She was employed from time to time upon the completion of her B.A. in several institutions. The schools where the first respondent worked included the following :
(i) Anjuman-i-Islam Girls High School and Junior 6-7-87 to 5-10-87College of Science & Commerce 17-8-88 to 31-10-88(ii) Rehmatbai Habib High School Dec. 88 to 30-4-90(iii) Taiyebiyah Girls High School 13-6-90 to 7-7-90(iv) Dawoodbhoy Fazalbhoy Primary School From 9-7-90 with
extensions on 10-10-1990, 12-11-1990, 11-12-1990 and thereafter w.e.f. 1-2-1991 as an Assistant Teacher in the regular pay scales.
In 1988, while the first respondent was employed by Dawoodbhoy Fazalbhoy English Primary School, she took admission for the B.Ed. correspondence course of Annamalai University for the academic year 1988-89. The first respondent appeared for the B.Ed. Examination and passed the said examination in December, 1989. Upon passing the examination, the first respondent continued in service of the Dawoodbhoy Fazalbhoy Primary School where, as stated earlier, she had been regularly appointed as an Assistant Teacher. The marksheet of the first respondent for the B.Ed. examination which is annexed to the Affidavit in reply of the first respondent shows that the first respondent had appeared for the written examination as well as the practical examination conducted by Annamalai University and the syllabus included examinations in English and Social Studies.
3. On 14th May, 1993, the first respondent applied to the first petitioner for appointment in a vacancy on a post of English Teacher or Instructor. The first respondent was interviewed on 22nd June, 1993 by a Selection Committee consisting of five members, four of whom were the heads of High Schools and one of a Junior College. At the time of the interview, the first respondent tendered the original certificates and documents. The interview sheet which was filed before the School Tribunal contains a detailed reference to the qualifications of the first respondent and to her training and work experience including the fact that she was holding the post of a permanent teacher in the Dawoodbhoy Fazalbhoy Primary School. The appointment of the First respondent was duly recommended by the Selection Committee and on 22nd June, 1993 a letter came to be issued to her intimating to her that she had been selected for appointment as an Assistant Teacher in the Junior College of Education with immediate effect in a clear vacancy. The appointment was to be on a probationary basis for a period of one year subject to the completion of satisfactory demonstration and a verification of the original certificates. The first respondent was informed that the formal order of appointment would be issued after she had satisfactorily performed demonstration lessons before the Principal of the Junior College of Education. The first respondent sought a little time in order to enable her to complete the formalities required for her being relieved from the existing institution in which she was then employed as a permanent teacher.
4. The formal letter of appointment which was issued to the first respondent also dated on 22nd June, 1993 appointing her as an Instructor in the College of Education stated that her appointment was on probationary basis for two years and the terms of employment would be governed by the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 and the Rules framed thereunder. The first respondent was informed by Clause (8) of the said letter that her appointment was subject to the approval of the Department of Education, Government of Maharashtra.
5. On 2nd August, 1993 after relinquishing service from the existing school where she was employed as a permanent teacher, the first respondent joined the Junior College of Education of the first petitioner. She had barely served for two days on 2nd and 3rd of August, 1993 and took classes on those days. On 4th August, 1993 the first respondent was informed by the Principal that her services were no longer required by the College and had been dispensed with. On 6th August, 1993, 7th August, 1993, 12th August, 1993 and 16th August, 1993, the first respondent submitted representations to the Management complaining of the action which had been taken against her ostensibly for the reason that the B.Ed degree received by her from Annamalai University was not valid. In the last of her representations, the first respondent stated that she had since come to know that the real reason for her removal was not because she was not found wanting in qualifications but because one Ms. Ansari, a daughter of a Trustee Mr. A.R. Ansari, was sought to be appointed and in fact a letter had been addressed under the signature of Mr. A.R. Ansari himself.
6. Aggrieved by the order of termination, the first respondent filed an appeal before the School Tribunal. The appeal filed by the first petitioner came up for hearing on 18th April, 1994. At the hearing of the appeal, the first respondent informed the Tribunal of a Resolution passed by the Management at a meeting of the Trustees held on 2nd April 1994 in which it had been decided to withdraw the order of oral termination. A letter of the Chairman of the Trust dated 8th April, 1994 was also adverted to in the application filed by the first petitioner Trust for disposal of the appeal as infructuous in the light of the withdrawal of the order of termination. The School Tribunal, in view of this development, dismissed the appeal as infructuous on the ground that the first respondent 'is continued in service because of the withdrawal of the termination order'. The order passed by the School Tribunal refers to a Resolution passed by the Board of Trustees of the first petitioner on 2nd April, 1994 and the extract thereof which is annexed to the paper book is extracted herein below :
'Resolved that the oral termination orders of the Principal, and A.K.I. Junior College of Education, Kurla in the name of Mrs. Zulekha Mazahar Husain, Assistant Teacher, A.K.I. Junior College of Education, Kurla, during August, 1993, be withdrawn, with immediate effect.'
The Resolution of the Board of Trustees thus stated that the oral termination order which had been issued against the first respondent should be withdrawn with immediate effect. This Resolution did not profess to speak about a fresh termination of service. The letter dated 8th April, 1994 which was issued by the Chairman of the Trust to the Principal of the Junior College of Education, however, stated that in the meeting of the Board of Trustees held on 2nd April, 1994 it had been decided to terminate the services of the first respondent after withdrawing the oral termination order. Consequently, the Principal had been directed to withdraw the oral termination order and to report compliance.
7. The impact of this development will be considered shortly hereafter but it must be stated at the present stage that before the appeal was disposed of by the School Tribunal on 18th April, 1994, the Education Officer (Greater Bombay) had addressed a letter to the Principal of the College in reply to a letter dated 30th September, 1993. It appears that the Principal had sought a clarification on whether the qualifications of the first respondent were, in fact, valid. The Education Officer in his reply noticed that the first respondent had completed her B.Ed. degree in the subjects of Psychology and Sociology and had received the B.Ed. degree from Annamalai University. The said letter adverted to a Circular of the State Government dated 22nd November, 1989 by which it was decided that those teachers who had been appointed in regular service as on 22nd November, 1989 and were external candidates for the B.Ed. degree from Annamalai University or had registered themselves by the said date for the B.Ed. course of the said University, would only be recognised by Government. The communication of the Education Officer concluded by saying that the first respondent was serving in a Secondary School as on 22nd November, 1989. The B.Ed. degree obtained by her in December, 1989 could not be recognised. It is also stated that as the first respondent had obtained the B.Ed. degree with Psychology and Sociology as her subjects, her appointment could not be approved under the Annexure 63(2)(1) of the Secondary School Code.
8. After the School Tribunal disposed of the appeal which was filed by the first respondent in view of the withdrawal of the oral termination order, a fresh letter of termination was once again issued by the petitioners to the first respondent on 19th April, 1994. The ground on which the services of the first respondent were sought to be terminated was that she was 'not capable of taking English subject properly' and that the Education Department of the State Government had declined to approve her appointment as an Assistant Teacher in the College of Education.
9. Aggrieved by the order of termination, the first respondent filed an appeal once again before the School Tribunal on 6th June, 1994. By the impugned order dated 1st February, 1996, the Tribunal allowed the appeal and set aide the order of termination. The petitioners were directed to reinstate the first respondent and to pay her back wages for the previous period after deducting the salary which was earned by the first respondent in a school at Valsad where she had reportedly served. This order of the Tribunal has been challenged by the petitioners in these proceedings.
10. The first and the primary point which has been urged for consideration is the correctness of the finding of the Tribunal that the first respondent did in fact meet the required qualifications for appointment as an Instructor in the Junior College of Education. In dealing with the correctness of the submissions urged on this issue, it would be worthwhile to advert to the relevant statutory provisions.
11. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 is 'an Act to regulate the recruitment and conditions of service of employees in certain private schools'. The Act is, therefore, a statutory framework for prescribing the recruitment and conditions of service of employees of private schools. The expression 'Private school' is defined by sub-section (20) of section 2 to mean 'a recognised school established or administered by a Management other than the Government or a local authority. The expression 'School' is defined by Clause (24) of section 2 to mean a primary school, secondary school, or higher secondary school, Junior College of education or any other institution by whatever name called including a technical, vocational or art institution or part of any such school, college or institution, which imparts general, technical, vocational, art or, as the case may be, special education or training in any faculty or discipline or subject below the degree level. The expression 'school' is thus comprehensively defined to mean, inter alia, primary school, secondary school, higher secondary school and a Junior College of education or any other institution imparting education below the degree level. The definition, in so far as it is material for the present purpose, makes a distinction between a secondary school and a Junior College of education. Section 3(1) of the Act enunciates 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(1) empowers the State Government to make rules, inter alia, providing for the minimum qualifications for recruitment with duties, pay, allowances and other conditions of service of employees of private schools. Section 5(1) of the Act describes 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. Section 16 of the Act empowers the State Government to make Rules for carrying out the purposes of the Act. Clause (a) of sub-section (2) contemplates that the Rules may provide for the minimum qualifications for recruitment of employees of a private school, including the procedure for recruitment.
12. In exercise of the powers conferred by section 4(1) and section 16(2)(a) the State Government has framed the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Rule 6 provides that the minimum qualifications for the posts of teachers and the non-teaching staff in primary schools, secondary schools, Junior Colleges and Junior Colleges of education shall be as specified in Schedule 'B'. Part II of Schedule 'B' of the Rules lays down the 'qualifications for trained teachers in Secondary Schools and Junior Colleges of Education'. Para 1 thereof applies to Graduate teachers while Para 2 applies to Undergraduate teachers. Paras 3, 4 and 5 apply to Drawing, Craft and Language teachers. In so far as it is material for the present case, the qualifications for graduate teachers inter alia provide that the candidate must have 'a Bachelor's Degree in Teaching or Education of any statutory University or a qualification recognised by the Government as equivalent thereto'. In other words, a candidate must either have a bachelor's degree in teaching or education of any statutory University or alternatively, a qualification recognised by the Government as equivalent.
13. The first respondent holds a B.Ed. degree from Annamalai University. The fact that Annamalai University is a 'statutory University' within the meaning of para 1 (i) of Part II of Schedule B is not disputed. Indeed, the fact that Annamalai University is a statutory University has been recognised by the Government in other contexts when the question of considering equivalence for filling up of posts in public service has come up for consideration. A Government Resolution was issued as far back as on 21st August, 1969 which dealt with the recognition of degrees and diplomas of Universities and institutions recognised by the University Grants Commission for the purpose of recruitment to the posts and services in the State. The Government Resolution recorded that it was decided in consultation with the Public Service Commission that degrees and diplomas awarded by Universities in India which are incorporated by an Act of the Central or State Legislature in India and other educational institutions established by Acts of Parliament or declared to be deemed Universities under the University Grants Commission Act, 1956 and degrees of medicine included in the Indian Medical Council Act, 1956 should be recognised automatically for recruitment to posts and services except teaching posts in Government colleges. A list of statutory Universities and Institutions recognised by the University Grants Commission was appended to the said Government Resolution. The Annamalai University, it must be noted, is one of the Universities which was included in the list appended to the said Government Resolution dated 21st August, 1969. Thereafter a further Government Resolution dated 8th March 1995 was issued to which a list of statutory Universities recognised by the University Grants Commission was again appended. At the outset, it must be noted that both the Government Resolutions of 1969 and 1995 provide that this object is to acknowledge the recognition conferred upon certain Universities by the University Grants Commission. These Resolutions have been issued for filling up posts and services in the State other than in Government Colleges. Therefore, reliance on the said Government Resolutions is not for the purpose of determining as to whether those Universities are recognised for filling up posts in teaching institutions since the object of the Government Resolution is somewhat different. The limited purpose of referring to the said Government Resolutions is for establishing the list of statutory Universities recognised by the UGC which admittedly does include Annamalai University. In fact, as will be demonstrated a little later, there is no dispute about the fact that Annamalai University has been considered and regarded as one of the statutory Universities by the State Government. Once that is an accepted position, then the necessary consequences under the Rules which have been framed under the M.E.P.S. Act, 1977 is that a bachelor's degree in Teaching or Education granted by Annamalai University would be regarded as a valid qualification for appointment of a graduate teacher in a Junior College of Education. The first respondent admittedly has a B.Ed. degree which meets the requirement contained in Schedule 'B' to the Rules and must be, therefore, regarded as a qualified teacher for a Junior College of Education.
14. The difficulty which has arisen in this matter is because of the ambivalent attitude of the Education Department of the State Government reflected in the filing of three affidavits each one of which confounds the basic issue. An Affidavit dated 17th July, 1999 was filed in these proceedings by the Deputy Educational Inspector Shri C.L. Maindad. In that affidavit, the reasons furnished for not regarding the qualifications of the first respondent as valid are that (i) the first respondent was not serving in any secondary school as on 22nd November, 1989, (ii) The Government, by its letter dated 22-11-1989 had informed the Director of Education that the B.Ed degree course from Annamalai University would be recognised for only 'those teachers who were in regularised (sic) service as on 22-11-1989 and were external candidates for B.Ed. degree for the said University or those who had registered themselves for B.Ed course of the said University.', (iii) that she had obtained her B.A. Degree in Psychology and Sociology and (iv) that the University of Mumbai had communicated on 8th June, 1998 that the B.Ed degree acquired from any Indian University by correspondence cannot be considered as equivalent to the B.Ed. degree of the Mumbai University and (v) by a Government Resolution dated 20th April, 1978 the State Government has decided that teachers who have passed B.A. with Psychology and Sociology should not be appointed as teachers in schools.
15. Another affidavit has been filed on 31st August, 1999 by the Deputy Educational Inspector Shri C.L. Maindad. The hand written endorsement in that affidavit, a little prior to the first paragraph made by the deponent states that he is 'making this affidavit in support of the petitioners'. The affidavit sets out that the State Government had noticed that employees who had acquired B.Ed degrees through correspondence were not up to the calibre in comparison to the B.Ed course conducted by Universities in the State of Maharashtra as a full time course and that the State Government had decided to debar such employees from availing of the facilities of the B.Ed. degree course through correspondence. The State Government had accordingly, it is stated, directed by a letter dated 22nd November, 1989 that it would recognise the B.Ed. qualification obtained through correspondence in respect of teachers who were regular teachers till 22nd November, 1989 and thereafter such qualifications were de-recognised. The averment that has been made in the affidavit is that 'it was decided to recognise the qualification of the teachers of B.Ed. through correspondence of Annamalai till 22nd November, 1989 and thereafter such qualification from such University was derecognised.' The deponent has stated that since, the first respondent acquired the B.Ed. degree course through correspondence from Annamalai University in the month of December 1989, her qualification could not be considered as a valid qualification. The second reason why the qualifications of the first respondent have been held to be inadequate is on the basis of Annexure 63(2)(1) of the Secondary School Code. It is contended in the affidavit that it was obligatory for teachers to pass their graduation in any one of the subjects excluding English taught at the school level and reliance was also placed on a Government Resolution dated 20th April 1978. It is contended that the first respondent passed her B.A. examination in Psychology and Sociology subjects which are not taught at the school level, and on that ground also she was not entitled to be appointed in the school.
16. On 23rd February, 2000 when the present writ petition came to be heard by my learned brother Mr. Justice F.I. Rebello, the Director of Education or a competent officer was called upon to file an affidavit dealing with the following issues. :
'a) Whether the Government of Maharashtra after recognizing Annamalai University, as a statutory University has withdrawn recognition to any of its courses including correspondence course by any specific circular. Annex the Circulars/Resolutions.
b) Whether the Circular dated 22nd November, 1989 is only for the purpose of regularising a teacher to a regular post which she was holding at the time the circular was issued and/or whether the Circular dated 22nd November, 1989 would also apply to a teacher in the event such a teacher had held a regular post at the time the circular was issued and thereafter resigned from the post and applied to some other institution against the regular post.
c) Whether the Resolution dated 28th April, 1978 whereby in the case of appointment to a Secondary School in respect of the candidate who has passed B.A., B.Sc. Degree of recognised University other than compulsory English the candidate ought to pass at least in one subject prescribed for Secondary School, would also be applicable to a Junior Education College. Cite the Circular/Resolution/Rules.
d) Whether the Government has approved or can approve the post against which the petitioner was appointed by the respondent School.'
In response to the order passed by this Court, a third affidavit dated 10th March, 2000 has now been filed by one Ms. Geeta G. Joshi, Deputy Educational Inspector. In so far as the issue of qualifications is concerned, the deponent of the affidavit admits that the Government of Maharashtra had recognised Annamalai University as a statutory University. It is, however, sought to be contended that subsequently the State Government withdrew the recognition for the B.Ed course of Annamalai University through correspondence 'only' and that accordingly a letter dated 22nd November, 1989 was issued. The deponent of the affidavit clarified that save and except for the aforesaid letter dated 22nd November, 1989, there are no circulars, resolutions or notifications issued in respect thereof.
17. Though the nature of the justification advanced for not treating the qualification of the first respondent as a recognised qualification has thus varied from one affidavit to the other which had been filed by the Deputy Educational Inspectors in these proceedings. One common strand is the State Government's communication dated 22nd November, 1989 to all the Deputy Directors of Education. Since much of the argument in the present case has focused upon the implication of that letter, the contents of the said letter may be extracted in extenso:
'To,
The Director of Education,
(Higher Education)
Maharashtra State, Pune.
Subject : To regularise the appointment of teachers who have obtained B.Ed. degree from Annamalai University (Tamilnadu) by correspondence course and to make them applicable service benefits received by the teachers who have obtained B.Ed. degree from Statutory Universities in Maharashtra.
Please peruse your demi official letter bearing No. AMU/1089/18813/12-A, dated 3rd August, 1989, written by the Joint Director for Education Shri G.D. Kokane to the Deputy Secretary, Education and Employment Department, for reference.
2. Government letters bearing even Nos. dated 4th January, 1988, 21st February, 1989 and 21st March, 1989 (written to the Education Officer, Brihanmumbai) on the aforesaid subject, should now be treated as cancelled and appointment of all such candidates (teachers) who have been appointed in regular service on the basis of B.Ed. Degree obtained by Annamalai (Tamilnadu) University by correspondence course, or who have enrolled their names till this day, to obtain the said B.Ed. degree, after joining regular service, should be regularised from the date of the said degree. Further, this order is also made applicable even to those teachers who have been discharged from the service or who have been issued notices of discharge as per the previous Government Orders.'
18. At the outset, it needs to be noticed that the letter dated 22nd November, 1989 does not purport to deal with the question as to whether the recognition of the B.Ed. course of Annamalai University by the correspondence method should be withdrawn. The subject of the letter is the regularisation of the appointment of this class of teachers who have passed the B.Ed from Annamalai University by the correspondence course so that the benefits which are available to teachers who have obtained their B.Ed from the statutory Universities in Maharashtra can be extended. The letter dated 22nd November, 1989 provides that the appointment of teachers who were appointed in regular service should be regularised if (i) they have already obtained the B.Ed. degree from Annamalai University through the correspondence course or (ii) if until the date of the letter they had enrolled themselves or had registered for the purpose of the said course. The benefit of the said letter is also to be extended to those teachers who had previously been discharged from service or to whom notices of discharge had been issued under both Government Orders. In the affidavit which had been filed by the Deputy Educational Inspector in pursuance of the directions issued by this Court on 23rd February, 2000, it has been clarified that apart from this letter, there is no resolution or decision of the State Government withdrawing the recognition of Annamalai University correspondence course for the B.Ed. degree. The letter dated 22nd November, 1989 does not amount to a withdrawal of a recognition in any event. The purpose of the letter is to deal with the question of regularising the services of teachers who had either obtained the B.Ed degree from correspondence from the said University or had enrolled themselves from the said degree course prior to 22nd November, 1989 and of extending to them the service benefits given to teachers who have obtained the B.Ed degree from statutory Universities within the State.
19. In the affidavit which was filed on behalf of the State Government on 31st August, 1999 it was sought to be contended that the first respondent had obtained her B.Ed. degree from Annamalai University in December, 1989 and that, therefore, it could not be considered as a valid qualification. This reason is plainly contrary to the letter dated 22nd November, 1989 which stipulates that the benefit of the letter would also enure to persons in regular service who had been enrolled or registered for the B.Ed degree of Annamalai University prior to 22nd November, 1989. Though the first respondent obtained her degree in December, 1989 it is abundantly clear that she had in fact registered prior to that date. Hence even if the said Circular dated 22nd November, 1989 were held to be applicable the claim of the first respondent could not be invalidated merely on the ground that she acquired the B.Ed. degree in December, 1989.
20. In the earlier affidavit of the State Government filed on 17th July, 1999 it was sought to be contended that the first respondent was not serving in any secondary school as on 22nd November, 1989. In my view, this would be imposing a condition which was not required to be fulfilled by the terms of the said communication dated 22nd November, 1989. In the case of the first respondent, the documentary material on the record shows that between 17th August, 1988 and 31st October, 1988 she served at the Anjuman-i-Islam Girls High School & Junior College of Science and Commerce at Bandra. Thereafter from December 1988 to 30th April, 1990 she worked in Rehmatbai Habib High School. In June and July 1990, she served at the Taiyebiyah Girls High School. The first respondent joined the Dawoodbhoy Fazalbhoy Primary School in July 1990 and was ultimately made a permanent teacher in the school until she resigned to join the first petitioner. Having regard to the object underlying the communication of the Government dated 22nd November, 1989, I am clearly of the view that it would be impermissible to regard the first respondent as not fulfilling the conditions set out in the letter on the ground that she did not serve in a secondary school on 22nd November, 1989 or that she was not in regular service. The object of the letter dated 22nd November, 1989 was to confer the benefit of regularisation upon serving teachers who had completed the B.Ed degree through the correspondence course of Annamalai University. The correspondence course is ordinarily a matter of great convenience for serving teachers so that they do not have to discontinue the employment which gives them the source of their livelihood. The benefit of pursuing the correspondence course was, however, available only to regularly employed teachers who could not have forsaken their employment in order to pursue the course. That being the object and purpose of the letter and the underlying decision, the first respondent would clearly meet the requirements of the said letter. The first respondent was employed from December, 1988 to April 1990 in the Rehmatbai Habib High School and thereafter in July 1990 she joined the Dawoodbhoy Fazalbhoy Primary School where she was ultimately made permanent. There can be no doubt about the fact that the First Respondent was in fact a teacher who had been working both prior and subsequent to the date of the Government's circular dated 22nd November, 1989. She was ultimately made permanent in the school which she joined in July 1990. The benefit of the decision dated 22nd November, 1989 cannot be denied to the first respondent on the ground that after 22nd November, 1989, she resigned from service in order to join another school where she was made permanent. Even if the letter dated 22nd November, 1989 were to apply, its contents have to be read and understood reasonably. The letter cannot be regarded as a statutory qualification or disqualification, which it is not and can never be. The broad object and purpose of the letter cannot be ignored, as has been done in the present case.
21. In any event, I am of the clear view that the rules which have been framed in pursuance of the rule making power conferred by section 16 of the Act of 1977 must prevail over the terms of letters such as the one dated 22nd November, 1989. Letters and administrative instructions cannot override the provisions of rules which have a statutory character. The first respondent clearly fulfilled the qualifications required for an Instructor seeking to be appointed to a Junior College of Education. Her qualifications meet the requirements contained in Clause (i) of Para 1 of Part II to Schedule 'B' to the Rules. The first respondent held a Bachelor's degree in Education of a statutory university. That being the position, the reliance placed on the letter dated 22nd November, 1989 in order to disregard the qualifications of the first respondent is without basis or substance.
22. Similarly, the ground that the first respondent had not completed her B.Ed. degree in a subject other than compulsory English which was taught at the school level is once again erroneous. Part II of Schedule B to the Rules of 1981 specifies that the qualification required for graduate teachers in Junior Colleges of Education is, inter alia, a Bachelor's degree in teaching or education of any statutory University or a qualification recognised for Government as equivalent thereto. In contrast with this, if a comparison is made with Part III of Schedule 'B' which describes the qualifications for teachers in Junior Colleges, one of the requirements for a full time teacher is a Master degree of a statutory University in the respective subjects and in addition a B.Ed or a Diploma or Certificate in Teaching. Thus, in so far as Junior Colleges are concerned, the qualifications required include a Master degree in the respective subjects as well as a degree in education or certificate in teaching. The requirement that a candidate should have done a degree in the respective subjects is thus not a part of the qualifications prescribed in the rules for graduate teachers in colleges of education. In the case of a teacher seeking employment in a college of education, it is sufficient to hold a Bachelor's degree in teaching or education of a statutory University.
23. The School Tribunal on a review of the facts and circumstances relating to the appointment and termination of the services of the first respondent, came to the conclusion that the termination was not bona fide. Though the first respondent had been appointed on probation, the reasons on the basis of which her services came to be terminated were not relatable in her performance as a probationer but was for extraneous purposes. A recapitulation of the facts of the case would establish that the first respondent was appointed in June, 1993 after she was interviewed by a Committee consisting of five members who were heads of educational institutions. The Committee duly scrutinised her credential, qualifications, experience, and verified the original certificates and documents pertaining to her candidature. After the interview and the scrutiny of credentials by the said Committee, the first respondent came to be appointed. The first respondent was permitted to work for only three days from 2nd to 4th August, 1993 after which she was orally informed that her services were no longer required and were being dispensed with. The Tribunal has made a reference to the fact that this behaviour on the part of the then Management of the first petitioner was due to the fact that a daughter of one of the trustees Shri A.R. Ansari who had passed her M.A. in Urdu was sought to be appointed to teach the subject of English in the college. Since Ms. Ansari had done her M.A. in Urdu, she was according to the Tribunal not qualified to teach English and, therefore, one Ms. Khalid Wahid was appointed on extra payment to take English Classes. Since Ms. Ansari was unable to teach English and she was yet receiving her salary, a decision was taken to discontinue the services of Ms. Ansari and to appoint another Instructor in her place. The Tribunal noted that from the documents which were produced on the record it was clear that the services of Ms. Ansari were terminated though she was later appointed again.
24. In testing the bona fides of the decision of the then Management of the first petitioner to terminate the services of the first respondent, regard must be had to the fact that within a period of three days of her appointment, the first respondent was sought to be informed orally that her services were no longer required. It must be emphasised that the credential, qualifications and experience of the first respondent had been duly scrutinised by the Committee of five members as stated earlier, after the services of the first respondent were terminated, a letter was addressed on behalf of the management to the Deputy Director of Education on 13th September, 1993 asking for 'enlightenment' about the suitability for appointment of the first respondent. In response to this letter dated 13th September, 1993 which is extracted in para 30 of the judgment of the Tribunal, the Education Officer informed the management that in terms of the Government Circular dated 22nd November, 1989, the B.Ed degree which had been obtained by the first respondent could not be recognised. Since as on 22nd November, 1989 she was not serving in any Secondary School. Besides this, it was stated in the said letter that since the first respondent had obtained her B.Ed. degree with Psychology and Sociology, her appointment could not be approved in view of the provisions of Annexure 63(2) of the Secondary School Code. Thus, it is clear that when the services of the first respondent came to be terminated in the first instance by an order of oral termination, on 4th August, 1993 there was neither any communication from the Government in regard to the validity of the qualification which was obtained by the first respondent nor indeed had even a proposal been submitted to the Government for approval of the appointment of the first respondent. The first respondent then moved the School Tribunal against the termination of her services, in August, 1993. On 2nd April, 1994 the Board of Trustees of the first petitioner resolved to withdraw the oral termination order which had been passed against the first respondent. Accordingly, the School Tribunal was informed that the termination orders were being withdrawn. On 8th April, 1994 the Chairman of the Trust wrote a letter to the Principal informing him that in the meeting of the Board of the Trustees on 2nd April, 1994 it had been decided to terminate the services of the first respondent after withdrawing the oral termination order. The contents of the said letter dated 8th April, 1994 are clearly not borne out by the record of the Resolution which is annexed to the paper book because the resolution of 2nd April, 1994 merely spoke about the withdrawal of the order of termination and not of a decision to terminate the services of the first respondent again after withdrawing the termination. On 18th April, 1994 the Tribunal was persuaded to dispose of the appeal filed by the first respondent as infructuous in view of the fact that the order of termination was being withdrawn. The Tribunal noted that the appeal had become infructuous as the first respondent herein was continued in service because of the withdrawal of the termination order. On the very next day, on 19th April, 1994, the services of the first respondent were sought to be terminated once again. This time, the letter of termination referred to the fact that the department of education had declined to approve of the appointment of the first respondent. An additional reason was sought to be advanced, namely that the first respondent was 'not capable of taking English subject properly'. Having regard to this entire sequence of events, it would be difficult to find fault with the order of the Tribunal in so far as it had held that the termination of the services of the first respondent was not relatable to a genuine or bona fide reason relatable to her performance as a probationer but was motivated by an extraneous consideration designed to exclude the first respondent in order to benefit some other candidate.
25. When this matter came up for final hearing, the learned Counsel appearing on behalf of the petitioners informed the Court that the earlier management had now given way to a fresh Board of Trustees and that the present management which is in-charge of the first petitioner has, as such, no personal animosity against the first respondent. On a suggestion of this Court, the learned Counsel appearing on behalf of the petitioners, therefore, agreed to seek instructions on whether, subject to the decision of this Court on whether the first respondent did meet the required qualifications as prescribed under the law, the petitioners would be willing to give another opportunity to the first respondent for appointment in the institution. The learned Counsel appearing on behalf of the petitioners who has argued the matter with commendable fairness informed the Court that the petitioners are willing to appoint the first respondent and this appointment would be made as a probationer in order to allow the first respondent another opportunity to establish that she was capable of performing satisfactorily in the institution. The performance reports in regard to the first respondent which had been maintained on the earlier occasion prior to her termination in 1994 left much to be desired. Those performance reports were neither maintained in the prescribed form, nor did they inspire confidence. The performance reports were written out by the Principal on loose sheets of paper, some of them do not even bear the letterhead of the institution to signify any authenticity. In fairness to Shri Govilkar, the learned Counsel for the petitioners, it must be stated that he has been able to persuade the petitioners to allow the first respondent another opportunity to serve out the remaining period of her probation in the Junior College of Education. Learned Counsel, however, adverted to the fact that under the prescribed curriculum for teaching the students of the Junior College of education instruction had to be imparted through the first language of the student teachers, though terms, illustrations and practice have to be explained in English. The learned Counsel submitted that the medium of instruction in which the students of the Junior College of Education in the present case receive instruction is Urdu. Therefore, though the first respondent is required to teach English, a knowledge of Urdu is necessary in order to effectively impart instruction to students. The learned Counsel submitted, that the provisions of the Secondary Education Code and the Administrative Circulars of the Government have to be read in harmony with the requirements of the Rules which have been framed under the Act. In so far as the applicability of Annexure 63(2) of the Secondary Education Code is concerned, it does not in turn apply to a teacher in the Junior College of Education. The extract from Annexure 63 on which reliance was sought to be placed by the respondent expressly applies only to Secondary Schools. As already set out in the earlier part of this judgment, the definition of 'school' in Clause 24 of Section 2 makes a distinction between a Secondary School, and a Junior College of Education. However, having regard to the submission of Counsel and though the qualifications which are held by the first respondent have been held by me to be valid and to meet the requirements under the rules, it would, in my view, be necessary that the first respondent is required to satisfactorily perform as a teacher before she can be confirmed in service. The fact remains that the first respondent was initially appointed and continued in service only for three days though subsequently after the School Tribunal granted a stay to the termination of her service, she served in the Junior College of Education for some period in 1993-94. Much time has elapsed since 1994. That being the position, the order of the School Tribunal which mandates that the first respondent herein be reinstated in service should in my view be modified so as to direct that the first respondent shall be, on her reinstatement, placed on probation during which her performance as a teacher would be assessed by the petitioners in accordance with law. In so far as the payment of back wages is concerned, having regard to the fact that the first respondent and the petitioners have arrived at an amicable resolution of the dispute and the petitioners have fairly agreed to give another opportunity to the first respondent by appointing her on probation, I am of the view that the direction in regard to the payment of back wages should be suitably modified so as to provide for payment of 50 per cent back wages to the first respondent. The first petitioner is an aided school which receives a grant from the Government and the payment of 50 percent back wages would meet, in my view, the ends of justice. In concluding, it may be stated that the State Government does have a legitimate concern about the quality and qualifications of teachers of private schools in the State. Whether qualifications obtained through correspondence courses are efficacious is a policy matter for the State Government to decide. However, any policy decision has to be given effective by suitably incorporating it into the Rules of 1981 which define the qualifications for various classes of teachers in private schools. So long as the duly notified rules hold the field, they have to be observed. A modification of the rules can only take place by the procedure permissible under the Act and not by means of an administrative decision. This issue need not be expanded upon any further.
26. In the circumstances, the present petition is disposed of in the aforesaid terms, however, with no order as to costs. The qualifications which were held by the first respondent are held to be valid and proper and meeting the requirements under Schedule B of the Rules for appointment as a teacher in a Junior College of Education. In terms of the statement made on behalf of the petitioners, the petitioners shall appoint the first respondent as a teacher in the Junior College of Education to serve out the remaining period of probation during which time the performance of the first respondent shall be assessed in accordance with law. The first respondent will, in the circumstances of the case, be entitled to the payment of 50 per cent back wages.
Certified copy of this order is expedited.
An ordinary copy of this order authenticated by the Personal Secretary may be made available to the parties.