Maharashtra Seva Sangh (Through Its Secretary) and the Principal, Shree Nutan Prashala Junior College Vs. Shri Shaikh Jamalchand and the Deputy Director of Education, Pune Region - Court Judgment

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- - he submitted that rule 6 and the first proviso thereto clearly empowers the management to appoint untrained teacher, and even if the appointment of such teacher is allowed on year to year basis, his services are not liable to be terminated, unless trained graduate teachers become available. 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. 10. the first proviso to rule 6 provides that the education officer may allow managements to appoint untrained science graduate teachers for teaching mathematics and science subjects or untrained arts or commerce graduates for teaching other subjects in 'secondary schools' in exceptional circumstances, and such appointments shall, however, be allowed on an 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. the tribunal has, however, failed to consider the issue raised.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 8.9.1999 in appeal no. 70 of 1997 rendered by the presiding officer, additional school tribunal, pune region, solapur. the appeal, filed by respondent no. 1 under section 9 of the maharashtra employees of private school (conditions of service) regulation, act (for short 'meps act'), challenging his termination has been allowed by the tribunal. the operative portion of the impugned judgment reads thus:appeal is allowed as under.the orders of reducing the appellant from full time teacher to part time teacher and from part time teacher to teacher on clock hour basis issued by the deputy director of education and respondent no. 1 are hereby declared illegal and are quashed and set aside.appellant is restored to full time teacher in higher secondary school by name shree nutan prashala jr. college, solapur, since 1.4.1994. he is entitled to get salaries as a full time teacher from 1.4.1994, till he is restored as a full time lecturer. respondents are directed to pay the salary with effect from 1.4.1994 within the period of three months and further they are directed to allow the appellant to join his duties as a full time teacher in shree nutan prashala jr. college, solapur run by respondent no. 1 immediately.no order as to costs.2. the facts that are relevant and necessary to decide the questions raised in this petition are that respondent no. 1, who, at the relevant time, was only ma (sociology) and ma (political science), was initially appointed on 5.7.1990 by the petitioner-institution in their junior college on clock hour basis. admittedly he was not holding b.ed qualification, which is prescribed under rule 6 read with schedule b-iii of meps rules. on 30th march, 1991, respondent no. 2 - education officer had approved the appointment of respondent no. 1 only for one year by relaxing the condition of qualification. on 11.6.1991, respondent no. 1 was appointed as full time teacher for sociology with effect from 19.6.1991. on 11.6.1992, he was once again appointed for a period of two years (i.e. 1992-93 and 1993-94) on probation with effect from 15.6.1992. respondent no. 2, however, approved his appointment only for one year i.e. for 1992-93. respondent no. 1 thereafter was refused approval for academic year 1993-94 vide order dated 5.10.1994 on the ground that he was untrained teacher. respondent no. 1 was once again refused approval for the year 1994-95 on the same ground vide letter dated 20.3.1995 issued by respondent no. 2 - education officer. on 23.3.1995, respondent no. 1 informed to respondent no. 2 in writing that he is ready to work as part time teacher since he was not holding the prescribed qualification. respondent no. 2, however, granted approval only for the year 1994-95 with effect from 13.6.1995 as part time teacher. in 1992-93, respondent no. 1 had taken admission for b.ed course and he acquired the said qualification on 24.8.1995. even thereafter, respondent no. 1 was continued as part time teacher for 1995-96 and his appointment was approved as part time teacher by respondent no. 2. he was thereafter granted approval vide letter dated 29.11.1997 on clock hour basis. according to respondent no. 1, the approval granted on clock hour basis amounts to reduction in rank and hence he filed the instant appeal under section 9 of the meps act.3. the school tribunal after having considered rival contentions of the parties and the material on record, in paragraph 21 of the impugned judgment held thus:.it is clear that appointment order dated 11.6.1992 which was issued by respondent no. 1 to appellant as a full time lecturer in sociology was on probation for the period of two academic years i.e. 1992 to 1994. appellant has satisfactory completed the probation period of two years and deputy director of education has also accorded approval to the appellant's appointment as a full time lecturer in jr.college by separate orders dated 11.1.1993 by according relaxation to the appellant's educational qualification because appellant was not trained i.e. he has not completed b.ed. subsequently, appellant has completed b.ed. course also. appellant has completed probation period of two years from 14.6.1992 to april, 1994. therefore, as per section 5(2) of the maharashtra employees of private schools act, 1977 says that 'every person appointed to fill permanent vacancy shall be on probation for the period of two years. subject to the provisions sub-section (3) and (4), he shall, on completion on this probation period of two years deemed to have been confirmed. therefore, in view of the section 5(2) of the maharashtra employees of private schools act, 1977, appellant has become permanent employee of the respondent no. 1 therefore respondent no. 1 or deputy director of education cannot reduce the appellant into the rank i.e. from full time teacher to part time teacher and from part time teacher to teacher on clock hour basis without following the procedure of law and rules.in this matter, it is very important to note that from the pleadings and documents of the both the parties, it is clear that there was a clear and permanent vacancy when appellant was appointed as a full time lecturer in jr.college on probation and appellant has completed the probation period of two years satisfactory therefore his appointment order was according to section (5) of the maharashtra employees of private schools act. even though appellant was not b.ed at the time of his initial appointment but he has completed his b.ed. while he was in service therefore he has become trained teacher and his appointment was also approved by deputy director of education by giving relaxation in his educational qualification.from perusal of the judgment of the tribunal, and in particular paragraph 21 thereof, it is clear that the tribunal has given benefit of deemed permanency to respondent no. 1 under sub-section (2) of section 5 of the meps act.4. i have heard learned counsel for the parties at length and with their assistance gone through the entire material placed before the court. mr. deshmukh, learned counsel for the petitioner, at the outset, invited my attention to the relevant provisions of the act and the rules, and submitted that under any circumstances respondent no. 1 cannot claim benefit of the deeming provision under section 5(2) of the meps act, since admittedly he was not holding the prescribed qualification at the time of his appointment on permanent vacancy as full timer. he submitted, when respondent no. 1 was appointed on permanent vacancy as a full timer, he was not holding the required qualification, and when he acquired the prescribed qualification, the permanent vacant post, which he was claiming, ceased to exist. this, according to mr. deshmukh, the tribunal has completely overlooked and has wrongly held that respondent no. 1 became deemed permanent teacher as contemplated by sub-section (2) of section 5 of the meps act. mr. deshmukh also submitted that the judgment of the tribunal is without jurisdiction and hence nullity. he submitted that reduction in workload in any case would not amount to reduction in rank and, therefore, the appeal under section 9 of the meps act itself was not maintainable.5. mr. kudle, learned counsel for respondent no. 1 on the other hand submitted that though at the time of his initial appointment, and in 1992 on probation, he was not possessing the prescribed qualification, he acquired the same in august, 1995, and even thereafter he was continued in the service till he filed the appeal. he, therefore, submitted that respondent no. 1 deemed to have been confirmed, as has been rightly held by the tribunal. mr. kudle submitted that the moment respondent no. 1 acquired the prescribed qualification he also acquired legal right to continue as a teacher on permanent vacancy. he then submitted that the institution had given an undertaking that they will allow respondent no. 1 to continue in the said post and they would absorb him after he acquires the qualification of b.ed. in view thereof it is not open to the petitioner-institution to reduce him in rank by appointing him on clock hour basis. he submitted that the concept of untrained teacher is recognised under the provisions of the meps act and the rules thereunder. he submitted that rule 6 and the first proviso thereto clearly empowers the management to appoint untrained teacher, and even if the appointment of such teacher is allowed on year to year basis, his services are not liable to be terminated, unless trained graduate teachers become available. mr. kudle, thereafter, submitted that the petitioner-institution ought not to have reduced his rank from full timer to clock hour basis. he then submitted that the submission of mr. deshmukh on the point of maintainability of the appeal cannot be considered since it was never raised before the tribunal. lastly, he submitted that the appointment of surplus teachers at the relevant time in the school shows that there was sufficient workload available and that there was no reason for the management to appoint respondent no. 1 on clock hour basis in 1997, which amounts to reduction in rank from full timer to clock hour basis.6. the questions that fall for my consideration are whether respondent no. 1, 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 on probation for a period of two years, i.e. the academic years 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 orders appointing and granting approval as a part timer and then on clock hour basis, would amount to 'reduction in rank' if not, whether appeal under section 9 of the meps act is maintainable ?7. section 5 of the meps act, insofar as fresh appointments of teachers in junior colleges are concerned, provides that the management shall, as far 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. sub-section (2) of section 5 provides that every person appointed to fill a permanent vacancy shall be on probation for a period of two years. such person becomes deemed permanent on completion of this probation period of two years, subject to the provisions of sub-sections (3) and (4). sub-section (3) empowers the management to terminate services of the probationer at any point during the period of his probation after giving him one month's notice or salary or honorarium of one month in lieu of the notice, if in the opinion of management his work or behaviour during the period of his probation was not satisfactory. sub-section (4) deals with re-appointment of any probationer whose services has been terminated under sub-section (3). sub-section (5) provides that the management may fill in every temporary vacancy by appointing a person 'duly qualified' to fill every permanent vacancy and the order of appointment shall be drawn up in the form prescribed in that behalf, and shall state the period of appointment of such person.8. a plain reading of section 5 of meps act would show 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.9. rule 6 read with part iii of schedule b of meps rules deals with the qualifications for teachers in junior colleges. rule 6 provides that the 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 shall be as specified in schedule 'b'. part iii (1)(a) of schedule 'b', with which we are concerned in the present petition, provides that the full time teachers in junior colleges require to possess a master's degree of a statutory university in second class in the respective subjects plus b.ed, or a diploma or certificate in teaching, approved by the department. clause 1(d) of part iii of schedule b provides that if persons possessing the qualification referred to in clauses (a) and (b) are not available, the director may relax the qualification on the basis of the merits of each case and the person in whose favour such relaxation is allowed shall be appointed purely on temporary basis.10. the first proviso to rule 6 provides that the education officer may allow managements to appoint untrained science graduate teachers for teaching mathematics and science subjects or untrained arts or commerce graduates for teaching other subjects in 'secondary schools' in exceptional circumstances, and such appointments shall, however, be allowed on an 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.11. mr. deshmukh, learned counsel for the petitioner submitted that insofar as the first proviso to rule 6 is concerned, it will not apply to the facts of the present case since we are concerned with the teachers in junior college and not in secondary schools. the first proviso to rule 6 is applicable only to the teachers in secondary school and, therefore, no benefit of this proviso can be extended to respondent no. 1. on the other hand, the learned counsel for respondent no. 1 submitted that there is no difference between junior colleges and higher secondary schools and similarly no difference can be made between secondary schools and higher secondary schools for extending benefit of the proviso to rule 6. he submitted that if such benefit is not extended, till the trained teachers become available, the institution will not be able to appoint teachers, and as a result thereof, the students will suffer.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 vacany. it appears that there was reduction in workload and, therefore, he was appointed on clock hour basis.14. the second question raised by the petitioner is whether the orders appointing and granting approval as a part time teacher and on clock hour basis would amount to reduction in rank, as contended by respondent no. 1. it was submitted that the impugned judgment of the tribunal is without jurisdiction, and is, therefore, nullity and that it can be set aside even at this stage of the proceedings. section 9 of the meps act confers right of appeal to tribunal to employees of private schools. under this provision, notwithstanding anything contained in any law or contract for the time being in force, any employee in a private school, who is dismissed or removed or whose services are otherwise terminated or who is 'reduced in rank', by the order passed by the management, and who is aggrieved, shall have a right of appeal and may appeal against any such order. this provision, confers right on employees to challenge their reduction in rank by filing appeal before the school tribunal. in the present case respondent no. 1 was appointed as full time teacher only for the academic years 1991-92, 1992-93 and 1993-94. thereafter he was never appointed as full time teacher and he was appointed either as part timer or on clock hour basis. the grievance of reduction in rank was, however, made for the first time in 1997. it appears that some divisions were closed, which resulted in reduction of workload. moreover, it appears that some teachers, who rendered surplus, were directed to be absorbed in the petitioner no. 2 - college in 1995-96. the deputy director of education, therefore, could not accord approval to his (respondent no. 1) appointment for the academic year 1997-98 even as part time teacher and, therefore, he was required to be appointed on clock hour basis. it was specifically contended before the tribunal that respondent no. 1's appointment does not amount to reduction in rank as alleged by him and, therefore, he could not have filed appeal against such order. the tribunal has recorded the submissions to that effect, made on behalf of the petitioner-institution, in paragraph 17 of the judgment. the tribunal has, however, failed to consider the issue raised. the submission of mr. kudle, learned counsel for respondent no. 1 that such issue was not raised before the tribunal, therefore, deserves to be rejected outright.15. from the facts of this case it is clear that after 1994-95 respondent no. 1 was never appointed as full time teacher, in view of the fact that certain divisions were closed and no sufficient workload was available. as a matter of fact the permanent vacancy, on which respondent no. 1 was appointed as full time teacher in 1991-92, 1992-93 and 1993-94, was not available in 1994-95. therefore, in and after 1994-95, respondent no. 1 was appointed only as a part time teacher and in 1996-97 on clock hour basis. it is against this backdrop the question that requires consideration is whether that would amount to 'reduction in rank' ?16. a plain reading of the expression 'reduced in rank' as occurred in section 9 of the meps act, means to reduce or to shift, may be under exigencies of situation or by way of punishment, to a post in lower grade than the one to which the concerned employee was initially recruited, or than the post which he was holding at the relevant time. it amounts removal from higher post and to appoint him to lower post or grade. in other words, reduction in rank has the same effect of removing an employee from a grade or category of post to a lower grade or category. for instance, reducing/shifting from the post of head master to assistant teacher. such is not the case of respondent no. 1. in my opinion, appointing a full time teacher as a part timer or on clock hour basis, in view of reduction of divisions or workload, would not amount to reduction in rank. even if a full time teacher is appointed as a part timer or on clock hour basis, his grade or category of post as assistant teacher remains the same. in short, reduction of workload cannot be treated as reduction in rank. in the circumstances the impugned judgment deserves to be set aside also on the ground that the appeal filed by respondent no. 1 under section 9 of meps act itself was not maintainable.17. in the present case after respondent no. 1 acquired the prescribed qualification in august 1995, he was appointed as part time teacher for the academic year 1995-96 and his appointment was approved as part timer vide order dated 29.9.1995. he was once again appointed as part timer in 1996-97 but the said appointment was not approved, and it was approved only on clock hour basis. it is pertinent to note that after the education department refused to grant approval to his appointment as full time teacher in junior college on the ground that he was not trained teacher in 1994-95, respondent no. 1 himself had requested the deputy director of education in writing to accord approval to his appointment as a part time teacher. that seems to be the reason why his appointment was approved as a part time teacher by the respondent - education officer. in 1995-96 and 1996-97, the petitioner-institution was forced to close some divisions and, therefore, the permanent vacancy which was available in 1991-92, 1992-93 and in 1993-94, on which respondent no. 1 was appointed on probation, was not available in and after 1994-95. in 1996-97, the management appointed and sought approval on clock hour basis and it was so granted by the education officer. it is thus clear that when respondent no. 1 was appointed as full time teacher on permanent vacancy he did not possess the prescribed qualification and when he acquired the qualification in august 1995, the permanent vacancy, on which he was working earlier, was not available. respondent no. 1, therefore, was wrongly given benefit of deemed permanency by the tribunal under section 5(2) of meps act. in the result this writ petition succeeds. the judgment and order passed by the school tribunal is set aside. no costs.18. at this stage mr. kudle, learned counsel for respondent no. 1 prayed for stay of this judgment for a period of six weeks. mr. deshmukh, learned counsel for the petitioner does not oppose the prayer. the judgment shall remain stayed, as prayed, for a period of six weeks from today.