Shri Swami Samarth Apang Seva Mandal v. Madhukar Dashrath Ghodke

1. Rule. Rule is made returnable forthwith and with the consent of the parties, petition is taken up for hearing.

2. Petitioner-Management has filed this petition challenging Order dated 03 October 2016 passed by the Appellate Authority-cum- Regional Deputy Commissioner, Social Welfare, Pune Division Pune setting aside oral termination of Respondent No.1 with effect from 01 May 2002 and directing his reinstatement with 50% backwages.

3. Facts of the case are in a narrow compass. Petitioner No.1 is a Trust registered under the provisions of the Maharashtra Public Trusts Act 1950 and also a Society registered under the provisions of the Societies Registration Act 1860. Petitioner-Trust has set up several schools for imparting training to disabled students. One such School established by Petitioner-Trust is Shri Swami Samarth Asthi Vyang Nivasi School, Akkalkot (School). During the years 1993 to 1995, the school was functioning on non-grant basis. Respondent No.1 held qualification Bachelor of Arts (B.A.) and was appointed as Special Teacher in the school on temporary basis on payment of honorarium. On 28 April 1995, grant-in-aid was extended to the Petitioner-School with one of the conditions that appointed teacher should be trained. On 30 May 1995, Respondent No.1 was given regular-temporary appointment for the academic year 1995-1996. The District Social Welfare Officer, Zilla Parishad, Solapur approved appointment of Respondent No.1 on 23 May 1996 subject to condition of acquiring necessary qualification in academic year 1996-1997. Accordingly, Petitioner-School issued letter to Respondent No.1 on 03 May 1996 calling him upon to acquire qualification of Diploma in Education (D. Ed) / Bachelor of Education (B. Ed.).

4. Special School Code for Handicapped, 1997 (Special School Code) came to be notified by the State Government in the year 1996, which provided eligibility criteria as D. Ed. for Trained Teachers for physically disabled schools. The appointment of Respondent No.1 was continued for academic year 1997-1998. It appears that Respondent No.1 acquired B.Ed. qualification from Shivaji University, Kolhapur on 17 October 1998. He gave intimation of acquisition of B. Ed. qualification to the School on 08 January 1999. In the meantime, on 01 June 1998 the Petitioner-Management appointed one Shri. R. Y. Dandagule on the post of Special Teacher. According to Respondent No.1, there was no vacancy available for appointment of Shri. R. Y. Dandagule. He was appointed because he was relative of one of the trustees. On 29 May 1999, Commissioner, Social Welfare cancelled grant-in-aid of Petitioner-School on account of failure to appoint Trained Teachers. The grant-in-aid was however restored in the year 2001-2002 on condition of appointment of Trained Teachers. Respondent No.1 demanded that he be continued in service after restoration of grand-inaid and he was issued appointment order on 08 April 2002 only for limited period from 24 January 2002 to 30 April 2002 which was approved. After 30 April 2002, the appointment came to an end and Respondent No.1 was never appointed thereafter.

5. Respondent No.1 filed Appeal No.114 of 2002 before School Tribunal, which allowed the Appeal on 29 April 2003 and ordered reinstatement of Respondent No.1 with backwages. Petitioner filed Revision No.5853 of 2003 in this Court challenging the decision of the School Tribunal, which came to be admitted and reinstatement Order came to be stayed. On 20 February 2015, this Court disposed of Writ Petition No.5853 of 2003 holding that Appeal field before the School Tribunal was not maintainable as the school was not recognised under the provisions of Maharashtra Employees of Private Schools Act (Conditions of Services) Regulation 1977. Respondent No.1 was therefore granted liberty to approach the Appellate Authority under the Special School Code, 1997.

6. Accordingly Respondent No.1 filed Appeal under Rule 86 of the Special Schools Code, 1997. By order dated 03 October 2016 the Appeal of Respondent No.1 came to be allowed by the Appellate Authority by setting aside the oral termination Order dated 01 May 2002 and directing Petitioner-Management to reinstate him on the post of Special Teacher with 50% backwages. Petitioner-Management is aggrieved by the Order dated 03 October 2016 passed by the Appellate Authority and has filed present petition.

7. Mr. Deshmukh, the learned counsel appearing on behalf of Petitioner-Management would submit that Respondent No.1 was not qualified to be appointed on the post of Special Teacher. That under the Special School Code, 1997 the requisite qualification for appointment on the post of Special Teacher is D. Ed., which is admittedly not possessed by Respondent No.1. That possession of B.Ed qualification by Respondent No.1 is irrelevant. That D.Ed and B.Ed. are separate qualifications. He would place reliance on the Judgment of Full Bench of this Court in Smt. Jayashree Sunil Chavan Vs. The State of Maharashtra & Ors., 2000 (3) MhLJ 605 in support of his contention that persons holding qualification of B.Ed. cannot be appointed against the posts notified with qualification as D.Ed. He would also rely on judgment of the Apex Court in Devesh Sharma vs. Union of India (2023) SCCOnline SC 985. He would further submit that Respondent No.1 neither enrolled with the Rehabilitation Council of India nor has been acquired Bridge Course. That therefore he cannot take the benefit of Government Circular dated 20 December 2014. Mr. Deshmukh would further submit that Appellate Authority could not have directed reinstatement of a untrained teacher. In this regard he would rely upon Judgment of Apex Court in Ram Sukh and others Vs. State of Rajasthan and others, 1989 Supp (2) SCC 189. He would submit that untrained teacher cannot claim deemed confirmation and would rely on Judgment of this Court in Maharashtra Seva Sangh, Solapur and another vs. Shaikh Jamalchand and another, 2009 (4) Mh.L.J. 198. He would submit that the Petitioner’s school has been closed since the year 2017 and that therefore Respondent No.1 can no longer be reinstated. He would therefore pray for setting aside the Order dated 03 October 2016.

8. Per Contra Mr. Tajane, the learned counsel appearing for Respondent No.1 would oppose the petition and support the Order passed by the Appellate Authority. He would submit that Respondent No.1 has worked since 01 June 1993 till he was unceremoniously thrown out of service on 01 May 2002. That the Special Schools Code was notified in the year 1997 i.e. after the appointment of Respondent No.1 in the year 1993. That even other two employees working as Special Teacher in the school possessed B.Ed. qualification. That Shri. Dandagule was appointed with qualification of B.Ed. and Respondent No.1 was terminated with a view to accommodate Shri. Dandagule, for whom there was no vacant post. Inviting my attention to letter dated 19 May 2015, Mr. Tajane would submit that all the teachers working in 05 Special Schools in Solapur district possessed B.Ed qualification. That their services were never terminated. He would submit that the Full Bench decision in Smt. Jayashree Sunil Chavan (supra) cannot be said to be laying down valid law in view of subsequent Judgments of the Apex Court in State of Maharashtra Vs. Tukaram Tryambak Chaudhari & Ors., 2007 (2) All MR (SC) 933 and of this Court in Namdeo Sukdeo Saptale Vs. The Chairman, Kai Ramchandra Patil Shikshan Sanstha & Ors., (2016) 3 Mh.LJ 827. He would therefore submit that the Appellate Authority has rightly set aside the termination and directed his reinstatement with full backwages.

9. Rival contentions of the parties now fall for my consideration.

10. The Petitioner-Management has challenged the Order of the Appellate Authority setting aside termination of Respondent No. 1 and directing his reinstatement with 50% backwages essentially on the ground that he did not possess requisite D.Ed. qualification prescribed under the Special Schools Code. There is no dispute to the position that under the Special Schools Code, the qualification for appointment on the post of Special Teacher is D.Ed. It is the contention of Petitioner-Management that D.Ed. and B.Ed. are different qualifications and mere possession of Bachelors Degree in Education would not satisfy the requirement of possession of Diploma in Education. Reliance is placed on Full Bench Judgment of this Court in Smt. Jayashree Sunil Chavan in which the question referred to the Full Bench was ‘weather the qualification of D. Ed. is a requisite qualification for teaching students in primary school ?’ The Full Bench answered the reference in negative by holding as under:-

26. The position has to be accepted as well settled that imparting primary and secondary education to students is the bounden duty of the State Administration. It is a constitutional mandate that the State shall ensure proper education to the students on whom the future of the Society depends. In line with this principle, the State has enacted statutes and framed Rules and Regulations to control and regulate establishments running private schools at different levels. The State Government provides grants recognition and/or permission to run private schools with a view to exercise control over the institutions and to ensure that the standard of teaching does not suffer for want of academic control. It needs no emphasis that appointment of qualified and efficient teacher is a sine qua non for maintaining high standard of teaching in educational institutions. In order to achieve, maintain, high and proper standard of education at the entry point i.e. at the stage of primary education, if the State has formulated its policy only to appoint the teacher with requisite professional qualifications, no fault, in our opinion, can be found. The said obligation of the State stands reflected in section 16 of the Act which mandates the State to prescribe minimum qualifications for recruitment of teacher in private schools. The policy of the State reflects through Rule 6 which prescribes qualifications of primary teachers as mentioned in Schedule ‘B’ Part 1, whereas qualifications for secondary teachers are mentioned in Schedule B Part II of the Rules. Schedule ‘B’ Part I prescribes D.Ed. as the requisite qualification for primary teachers, whereas Schedule B Part II prescribes B.Ed. as a requisite qualification for higher secondary teachers. Based on the aforesaid provisions, it is to be noticed that B. Ed is not requisite qualification for primary teachers. The syllabus for B.Ed. is entirely different. The syllabus for D.Ed. is better suited for imparting education to the students taking education in primary schools only whereas syllabus for B.Ed. is entirely distinct and better suited for the students taking education in higher standards. The factual position has been born out from the relevant material placed on record, reference of which have already been made by us in para 22 (supra).

11. The Supreme Court in Tukaram Tryambak Chaudhari (supra) has dealt with the issue as to whether persons holding qualification of B.Ed. can be appointed in primary schools. The Apex Court took note of the Government Resolution, which envisaged that Graduate Teachers employed in primary schools were also responsible for teaching stidents in standards 5 to 7. The Apex Court therefore held in paragraph 16 as under:- “16. Mr Apte contended that the government resolution of 14-11- 1979 had been duly noticed by the High Court in its correct perspective which was to bring about a parity between the facilities given to the teachers of 5th to 7th standards attached both with primary schools as well as secondary schools. In the resolution itself it was indicated that 25% of the teachers teaching in the 5th to 7th standards attached to secondary schools were enjoying the benefit of a higher scale of pay for the fourth teacher who was a trained graduate teacher being a graduate as well as having the BEd degree, while for the same classes attached to primary schools there was no such arrangement. It was noticed that all teachers in these classes of primary schools were with HSC and DED qualifications and that in these classes of primary schools there was no permission for appointing trained graduates as teachers. In order to remove the difference in the staffing pattern of these classes in these kinds of schools, the Government decided that in primary schools run by local selfgoverning bodies and having 5th to 7th standard classes, 25% of the posts of approved strength of teachers in those classes should be converted into increased pay scale which was meant for those very classes in the secondary schools. It was submitted that the Government consciously provided for the appointment of trained graduate teachers for the 5th to 7th standards attached to primary schools.

12. The issue before the Apex Court in Tukaram Tryambak Chaudhari was entirely different. Apex Court has dealt with the issue of lethality of action of the State Government in treating Graduate Teachers posted to work in primary schools but who were teaching classeds 5 to 7 as untrained teachers. The Apex Court upheld the judgment of this Court directing them to be treated as trained teachers. Thus the Apex Court did not determine the issue of equivalence of qualifications of B.Ed and D.Ed. The judgment of Apex Court in Tukaram Tryambak Chaudhari has been followed by Single Judge of this Court in Abdul Jamey (supra) in which this Court held in paragraph 12 to 15 as under:- 12.) Mr. Chaukidar has pointed out that the Honourable Supreme Court has ruled in the case of State of Maharashtra vs. Tukaram Tryambak Chaudhari and others, 2007 2 AIIMR 933, and others that the teachers possessing B.A/BSc. B. Ed. qualification are duly qualified and are eligible to continue to receive salary as trained teacher and that D.Ed. is not the minimum qualification. The Supreme Court had been taken through two decisions rendered by this court, the one by full bench in Jayashree’s case and other by Division Bench in Kondiba vs. State of Maharashtra, 2003 2 All MR 951. It had been brought to the notice of the Supreme Court that the government resolutions dated 14.11.1979 had not been brought to the notice of the full bench. The Supreme Court had, therefore, observed in paragraphs 17 and 18 in the case of State of Maha. vs. Tukaram Tryambak as under: -- -- -- 13.) The Supreme Court had adverted to the arguments on behalf of Tukaram referring to that the government resolution dated 14.11.1979 had not been brought to the notice of the full bench and that the resolution, reading in correct perspective, reveals that to bring about parity between the teachers teaching to the standards from 5th to 7th attached to both, primary school as well as secondary school, 25 per cent of the posts of the teachers teaching 5th to 7th standard attached to the secondary school were entitled to enjoy benefit of pay scale of trained graduate teachers. It had been further adverted to that the said government resolution was considered and dealt with by the Division Bench of Bomay High Court in Kondiba’s case. The Supreme Court was thus impelled to observe that the decision rendered by the High Court in Kondiba’s case was closer to the facts and, therefore, High Court's decision in Tukaram’s case cannot be valid. 14.) A division Bench of this Court had distinguished the position emerging from the decision of said full bench where the MEPS Act has no applicability and held that the Assistant Teacher possessing B.A. B. Ed. qualification is a trained teacher and is entitled to be appointed as Head Master. The Division Bench had held that notwithstanding the full bench decision, policy of the State government under its resolution dated 14.11.1979 was not affected by the same and further held that the policy continues to apply to primary schools run by the municipal council from 1st standard to 7th standard The Division bench held that the Assistant Teacher who possesses B.A. B. Ed. qualification and teaches in school imparting education to to 1st to 7th standard is a trained teacher and, therefore, is entitled to be appointed as Head Master. 15.) Petitioner has informed this court during the course of hearing that from 1.1.2004 to 31.11.2005, he has been paid salary as trained teacher and thereafter payment had been stopped by Respondents The apparent reason for stoppage of salary had been cancellation of his performance in D.Ed course. Said action of the Respondents had been the subject matter of writ petition No.815 of 2006 at petitioner's instance which was decided on 7.12.2010 in his favour. In the interregnum, petitioner tendered resignation on 25.11.2008. The petitioner has pointed out the Government Resolution dated 11.11.2011 based on the judgment of the Apex Court in Tukaram’s case providing for approval to appointment of a trained graduate teacher and has submitted that his case is squarely covered under the same.

13. It is relying on the judgments of the Apex Court in Tukaram Tryambak Chaudhari and of this Court in Abdul Jamey that Mr. Tajane has contended that the Full Bench judgment of this Court in Jayashree Sunil Chavan has lost its efficacy. However the latest judgment of the Apex Court in Devesh Sharma draws curtains on the entire controversy. The Apex Court has determined the issue of equivalence in qualifications of B.Ed and D.Ed and held as under:

30. The academic authority, which is NCTE considered the appointment of trained and qualified teachers as an absolute necessity in primary schools. It is for this reason that the qualification which was prescribed for a teacher in primary school was a diploma in elementary education (D.El.Ed.), and not any other educational qualification, including B.Ed. Apart from this the teachers eligibility test or TET would further test the skills of a candidate to handle students at primary level.