Prakash v. Municipal Council, Tumsar, And Others

Dhabe, J.:— The petitioner has in this writ petition claimed the relief that the order of appointment of respondent 2, dated 17 November, 1987, for the academic session 1987–88 should be quashed and that the petitioner should be directed to be appointed for the academic session 1987–88 in the secondary school of respondent 1 as an assistant teacher.

2. The facts are that the petitioner who had no training qualification and was B.Sc only was appointed initially as an assistant teacher in the subject of Mathematics in the secondary school of respondent 1 by an order, dated 12 December, 1983, which appointment came to an end on 24 January, 1984. In the academic session 1984–85 the petitioner was again appointed as an assistant teacher by respondent 1 by its letter, dated 28 November, 1984, till the end of the said academic session which period was about five months only. During the academic session 1985–86, the petitioner was again appointed by an order, dated 17 August, 1985, as an assistant teacher by respondent 1 for one academic session, i.e, up to 30 April, 1986. In the next academic session 1987–88 also the petitioner was appointed as an assistant teacher by an order, dated 28 June, 1986, which was up to 30 April, 1987.

3. In this academic session, i.e, 1986–87 the petitioner had made an application to respondent 1 that he should be allowed to acquire B.Ed qualification by attending the summer B.Ed course. This application was considered by the standing committee of respondent 1 in its meeting held on 24 January, 1987. The standing committee granted permission to the petitioner to acquire B.Ed qualification at his own cost. It further stated that the work of the petitioner was satisfactory and his service can be regularised from the academic session 1987–88, subject to approval of the Education Officer, Zilla Parishad, Bhandara. According to the petitioner, he did not get admission to the summer B.Ed course because according to the concerned authorities, he was not an in service candidate. It is not in dispute that the petitioner did not take any steps in regard to the question of his admission to the B.Ed course and thus he is still today an untrained teacher.

4. In the academic session 1987–88, respondent 1 appointed respondent 2 as an assistant teacher in Mathematics. Respondent 2 is also an untrained teacher. He was appointed in 1987–88 by an order, dated 17 November, 1987. Feeling aggrieved by the appointment of respondent 2 who was also untrained like the petitioner, the petitioner has preferred the instant writ petition in this Court.

5. It is the case of the petitioner in this writ petition that as per the decision of the State Government incorporated in its resolution, dated 12 August, 1987, the State Government bad extended time up to 30 June, 1990 for acquiring training qualification and till then as per Para. 3 of the said Government resolution, dated 12 August, 1987, he was entitled to continue in service. The petitioner has challenged the appointment of respondent 2 also on the ground that it is not bona fide because respondent 2 was appointed, although untrained, as an assistant teacher in respondent 1's school since he was brother of one of the Municipal Councillors.

6. Respondent 1 in its return has pointed out that at the beginning of the academic session 1987–88, an advertisement was given by respondent 1 for filling in the posts of the assistant teachers in the subject of Mathematics in its schools. Pursuant to the said avertisement, the appointments of the assistant teachers who were trained, were made by respondent 1 in its schools. However, one teacher out of them did not join in the said academic session. The case is that respondent 1 appointed respondent 2 as an assistant teacher although untrained, as per the order, dated 14 November, 1987 since he had applied for the post of assistant teacher (Mathematics) in that session. As regards the petitioner, it is admitted that although he had also applied for the said post and was interviewed, he was not given appointment during the said academic session, i.e, 1987–88. It is further stated in the return by respondent 1 that during 1988–89, respondent 2 was appointed as assistant teacher by an order, dated 16 March, 1989, for a period of six months which order was further continued for a further period of six months by an order, dated 13 September, 1989.

7. The reason given by respondent 1 for appointment of respondent 2 on 16 March, 1989 for academic session 1988–89 is that during the said academic session pursuant to the advertisement given, the trained teachers in all the four posts were available and had joined the schools, but since their selection was to be made by the selection board constituted by the State Government, their appointments were only for six months. After the period of six months when fresh appointments were given to them, one of them did not join the school and, therefore, respondent 2 was given appointment on 16 March, 1989 for a period of six months in his place. As regards the academic session 1989–90, it is not in dispute that so far as the post to which the appointment of respondent 2 was made was concerned no advertisement was given for getting the services of the trained teacher and the appointment of respondent 2 was continued for a further period of six months in this academic session 1989–90 by an order, dated 13 September, 1989.

8. When during the hearing of this writ petition the learned counsel for the petitioner realised that his relief is restricted to the appointment of respondent 2 for the academic session 1987–88 only, he proposed the amendment to the writ petition claiming additional relief in the writ petition that although untrained, in view of the Government resolution, dated 12 August, 1987, referred to above, he was entitled to continue in service till 30 June, 1990. During the hearing it also transpired that specific averments and relevant documents in regard to the advertisement in respect of the trained teachers for Mathematics given by respondent 1 were not there in the original return. After the amendment proposed by the petitioner to his writ petition was allowed, respondent 1 also filed an additional return in which all these relevant documents were incorporated. It is on the basis of these documents that we have to consider the question raised by the petitioner in the instant writ petition.

9. The material question raised for consideration in this writ petition is about the construction of the Government resolution, dated 12 August, 1987, incorporated at annexure 5 in the writ petition. It is pertinent to see that under that School Code as well as the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (for short the Act), and the rules framed thereunder the training qualification was a must for appointment as assistant teacher in a school which was recognised under the said provisions and was recipient of grant-in-aid from the State Government. It is not in dispute that the secondary school run by respondent 1 in which the appointments in question are made was a recognised school and the provisions about the prescribed qualification under the School Code or under the Act were applicable to the teachers in respondent 1's school.

10. Rule 6 of the rules deals with the qualifications of, the teachers. 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, such as non-availability of trained graduates. However, the said proviso further provides that such appointments shall be allowed on an year to year basis, on the clear understanding that such untrained teachers shall have to obtain the training qualification at their own cost and further subject to the condition that their services shall be liable for termination as soon as the trained graduate teachers become available.

11. The second proviso to rule 6 further provides that the untrained graduate appointed as a teacher after obtaining the permission from the Education Officer before the commencement of the rules is the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, and who continues to be in service in a school on the date of commencement of the Maharashtra Employees of Private Schools (Condition of Service) Amendment Rules, 1984, shall be continued in service on the condition that he obtains the prescribed training qualification at his cost before 1 June, 1987 failing which his services shall be liable to be terminated. This last date of 1 June, 1987 for acquiring the training qualification was extended by the aforesaid Government resolution, dated 12 August, 1987 up to 30 June, 1990. However, in order to protect teachers whose services might have been terminated because they did not acquire the training qualification by 1 June, 1987, it was directed in Para. 3 of the said resolution that the assistant teachers whose services were terminated in the intervening period between 1 June, 1987 and 12 August, 1987 should be taken back in service and the intervening period between the termination and their subsequent appointment should be treated as leave admissible under the rules.

12. Perusal of Para. 2 of the said Government resolution, dated 12 August, 1987, would show that time is extended thereunder up to 30 June, 1990 for the benefit of the untrained teachers to acquire the training qualification. There is, however, nothing to show in the said resolution, dated 12 August, 1987, that the secondary schools are bound to continue the untrained teachers till 30 June, 1990 although before that period, the trained teachers may be available to them. The said resolution, dated 12 August, 1987, also does not override the first proviso to rule 6 which clearly provides that on availability of a trained teacher, the services of the untrained teacher are liable to be terminated. Further, the requirement of the first proviso that the appointment of untrained teacher should be on year to year basis is also not dispensed with. It is in the light of the above construction of the Government resolution, dated 12 August, 1987, that we have to consider the grievance of the petitioner in the instant writ petition.

13. It is clear from the service particulars of the petitioner that every time he was given an order of appointment for a specified period or till the end of the particular academic session which would mean that in every subsequent academic session he was required to make a fresh application for the post of the assistant teacher in the school pursuant to which the fresh appointment was to be given in that academic session to him since he was an untrained graduate. During the academic session 1987–88, the petitioner had made an application for appointment to the post of assistant teacher in Mathematics. Similarly, respondent 2 had also made application for appointment as assistant teacher in the subject of Mathematics. It is further clear from the resolution of the standing committee or the Municipal Council, dated 24 January, 1987, that the work of the petitioner was satisfactory in 1986–87 and in fact but for his not acquiring the training qualification he would have been regularised also in his post from the session 1987–88.

14. The petitioner as well as respondent 2 were interviewed by respondent 1. However, respondent 2 was given appointment although untrained like the petitioner. It is clear that in view of the aforesaid Government resolution, dated 12 August, 1987, and also the resolution of the standing committee who has found the work of the petitioner satisfactory, there is no reason for not appointing the petitioner in the academic session 1987–88 particularly when he is being given appointment in each academic session since 1983–84. The appointment of respondent 2 for the academic session 1987–88 is thus clearly contrary to the Government resolution, dated 12 August, 1987, and is also arbitrary and discriminatory. Although it is not necessary for us to decide actually the question of bona fides of respondent 1 in appointing respondent 2, there is some force in the submission made on behalf of the petitioner that respondent 2 was given appointment only because he was related to one of the Municipal Councillors.

15. As regards the academic session 1988–89, it is clear that respondent 1 had issued advertisement for appointment in posts in Mathematics on 16 July, 1988 and that pursuant to the said advertisement, the trained graduates were available and their appointments were made in these posts by the orders, dated 8 August, 1988. However, according to respondent 1 these appointments could not be made for a period of more than six months since regular appointments in Class III posts in respondent 1 Municipal Council could only be made via the selection board constituted by the State Government. It is, however, further stated in the return that after six months the aforesaid trained graduates were given further appointment after giving only day's break but one of the trained graduates did not join thereafter. It is for this reason that according to respondent 1, in one vacant post, the appointment was given to respondent 2 by an order, dated 17 March, 1989.

16. As regards the appointment of the trained teachers during the academic session 1988–89, no grievance is made by the petitioner. However, his grievance is that during 1988–89 when one of the trained teachers did not rejoin after a fresh appointment was given to him in March 1989, the petitioner should have been appointed in his post instead of respondent 2. In this regard it is urged on behalf of respondent I that the petitioner did not make any application for appointment to the post of assistant teacher in 1988–89 for which reason his claim was not considered during the academic year 1988–89. The learned counsel for the petitioner has, however, urged that the petitioner did not make application in this academic session 1988–89 because his writ petition was pending in this Court which fact was brought to the notice of respondent 1 by making representation to it when the applications were invited for appointment to the posts in Mathematics.

17. The crucial question, however, for consideration is whether the right, if any, created under the Government resolution, dated 12 August, 1987, is available to the petitioner after the appointments of the trained teachers are made in the school by respondent 1. The petitioner has not placed any material on record to show that the appointments of trained teachers were not made in the academic session 1988–89 before respondent 2 was appointed by the order, dated 17 March, 1989. In our view, as pointed out above, the appointment of an untrained teacher is essentially on year to year basis which would mean that it comes to an end after the academic session. It is, therefore, necessary for such untrained teacher to apply for the next academic session if he is interested in appointment in the next academic session. It is only then that his claim can be considered for the said academic session, it was, therefore, necessary for the petitioner to have made application for appointment in the academic session 1988–89.

18. Be that as it may, as we have pointed out above it is always open to the management to advertise the post occupied by untrained teacher for getting the qualified candidates. It is only till then that the untrained teacher can claim some right to get appointment in his post since the period for acquiring training qualification permitted to him under the aforesaid Government resolution, dated 12 August, 1984, is extended till 30 June, 1990. In fact the whole controversy in the instant case stands concluded by the judgment of the Supreme Court in the case of Ram Sukh v. State of Rajasthan [1989 — II L.L.N 978], the interests of the students require that they should be taught by the trained teachers and if the school appoints the trained teachers, the untrained teachers cannot claim any right of being appointed in preference to them. It is also observed that there is no obligation upon the State to continue the untrained teachers. (See Para 5, at page 979 of the report).

19. The question, therefore, to be seen is, whether after such trained teachers leave their services for any reason the right, if any, of the untrained teacher revives after their cessation for claiming appointment thereafter on the ground that the period provided for acquiring training qualification is till 30 June, 1990. In our view, such a construction of the Government resolution, dated 12 August, 1987, is not possible. Even otherwise as already pointed out, the untrained teacher has to apply in every academic session because his appointment is on year to year basis. Once the trained teachers were appointed, the petitioner could not claim any right on the basis of the Government resolution, dated 12 August, 1987. Since he did not apply for appointment to the post of teacher in 1988–89, his claim for appointment to the said post could not have been considered by respondent 1 in the academic session 1988–89.

20. Although the petitioner's claim could not have been considered during the period 1988–89 we should not be understood to say that the appointment of respondent 2 made as late as on 17 November, 1987 when the academic session was drawing to a close, was proper and justified. At any rate, since he was an untrained teacher his appointment could have been made till the end of academic session 1988–89 only. It is surprising how as late as on 17 November, 1987 his appointment was made for a period of six months which would mean that it was made only to make him entitled to vacation salary. It is further not understood as to why his post was not advertised in 1989–90 for getting trained teacher and without such advertisement his services were continued in 1989–90 for further period of six months, i.e, till 12 March, 1990. This would also show that there is some force in the submission made on behalf of the petitioner that respondent 2 was given appointment because he was related to one of the Municipal Councillors.

21. We have been informed by the learned counsel for respondent 1 that the appointment given to respondent 2 is subject to the approval of the Education Officer and that up till now no payment even has been made to him. We may only observe that all these facts need to be considered by the Parishad Education Officer while considering the question of granting approval to the appointment of respondent 2 made as per the order, dated 17 March, 1989, which was continued further by the order, dated 13 September, 1989, issued by respondent 1 Municipal Council. However, as regards the petitioner he can get limited relief only for the academic session 1987–88 when respondent 2 was illegally appointed for the said academic session by an order, dated 17 November, 1987.

22. In the result, the writ petition is partly allowed. The impugned order of the appointment of respondent 2, dated 17 November, 1987, is set aside and it is directed that the petitioner should be treated as in service from 17 November, 1987 to the end of the academic session 1987–88, i.e, till 30 April, 1988 and he should be paid the wages and other emoluments for the said period admissible under the rules as well as the vacation salary if he is entitled to the same as per the rule. Rule made absolute in the above terms. No costs.