UNNATI EDUCATION SOCIETY v. SAU. MANGALA MADHUKAR

MR. PRASAD. S. DANI FOR THE PETITIONER. MR. PRASAD. S. DANI FOR THE PETITIONER. MR. PRASAD. S. DANI FOR THE PETITIONER. MR. K.A.BNHATIA FOR RESPONDENT NO.1. MR. K.A.BNHATIA FOR RESPONDENT NO.1. MR. K.A.BNHATIA FOR RESPONDENT NO.1. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. CORAM : A.P. DESHPANDE, J. DATE : January 16, 2007. DATE : January 16, 2007. DATE : January 16, 2007. JUDGMENT JUDGMENT JUDGMENT

1. This Petition is filed by the school management 1. This Petition is filed by the school management 1. This Petition is filed by the school management and the challenge is to the Judgment and Order passed and the challenge is to the Judgment and Order passed and the challenge is to the Judgment and Order passed by the School Tribunal. The School Tribunal has by the School Tribunal. The School Tribunal has by the School Tribunal. The School Tribunal has allowed the Appeal filed by the Respondent No.1. The allowed the Appeal filed by the Respondent No.1. The allowed the Appeal filed by the Respondent No.1. The respondent came to be terminated from service by the respondent came to be terminated from service by the respondent came to be terminated from service by the Petitioner, by an Order of termination, dated 27th Petitioner, by an Order of termination, dated 27th Petitioner, by an Order of termination, dated 27th April, 1992. The Respondent NO.1 was appointed as an April, 1992. The Respondent NO.1 was appointed as an April, 1992. The Respondent NO.1 was appointed as an assistant teacher in primary school in the year 1984, assistant teacher in primary school in the year 1984, assistant teacher in primary school in the year 1984, pursuant to the appointment Order, dated 10.11.1984. pursuant to the appointment Order, dated 10.11.1984. pursuant to the appointment Order, dated 10.11.1984. At the time of initial appointment, the Respondent NO.1 At the time of initial appointment, the Respondent NO.1 At the time of initial appointment, the Respondent NO.1 was an untrained teacher and continued to remain was an untrained teacher and continued to remain was an untrained teacher and continued to remain untrained till the date of his termination.. untrained till the date of his termination.. untrained till the date of his termination..

2. Section 5 of the Maharashtra Employees of 2. Section 5 of the Maharashtra Employees of 2. Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, Private Schools (Conditions of Service) Regulation Act, Private Schools (Conditions of Service) Regulation Act, 1977, cast an obligation on the management of the 1977, cast an obligation on the management of the 1977, cast an obligation on the management of the private schools to fill in the permanent vacancy by private schools to fill in the permanent vacancy by private schools to fill in the permanent vacancy by appointment of a person duly qualified to fill such appointment of a person duly qualified to fill such appointment of a person duly qualified to fill such vacancy of assistant teacher. Rule 6 of the Act, lays vacancy of assistant teacher. Rule 6 of the Act, lays vacancy of assistant teacher. Rule 6 of the Act, lays down that for an appointment of teaching and down that for an appointment of teaching and down that for an appointment of teaching and non-teaching staff in primary school, he should possess non-teaching staff in primary school, he should possess non-teaching staff in primary school, he should possess minimum qualification, as laid down in Schedule "B" and minimum qualification, as laid down in Schedule "B" and minimum qualification, as laid down in Schedule "B" and Schedule "B", in turn, provides for appointment of a Schedule "B", in turn, provides for appointment of a Schedule "B", in turn, provides for appointment of a primary school teacher, who must possess education so primary school teacher, who must possess education so primary school teacher, who must possess education so also training qualification i.e. diploma in education. also training qualification i.e. diploma in education. also training qualification i.e. diploma in education. Admittedly, till date, the respondent No.1 has not Admittedly, till date, the respondent No.1 has not Admittedly, till date, the respondent No.1 has not acquired the prescribed Teaching/ Training acquired the prescribed Teaching/ Training acquired the prescribed Teaching/ Training qualification. qualification. qualification.

3. Perusal of the Order of the School Tribunal 3. Perusal of the Order of the School Tribunal 3. Perusal of the Order of the School Tribunal reveals that the Tribunal concluded in favour of the reveals that the Tribunal concluded in favour of the reveals that the Tribunal concluded in favour of the Respondent NO.1 by holding that the post in question Respondent NO.1 by holding that the post in question Respondent NO.1 by holding that the post in question was a permanent and the vacancy was clear. The was a permanent and the vacancy was clear. The was a permanent and the vacancy was clear. The Tribunal further found that the period for acquiring Tribunal further found that the period for acquiring Tribunal further found that the period for acquiring the training qualification was extended from time to the training qualification was extended from time to the training qualification was extended from time to time, till the year 1994-95. As stated , till date the time, till the year 1994-95. As stated , till date the time, till the year 1994-95. As stated , till date the respondent No.1 has not acquired the training respondent No.1 has not acquired the training respondent No.1 has not acquired the training qualification of D.Ed. In law, an untrained teacher qualification of D.Ed. In law, an untrained teacher qualification of D.Ed. In law, an untrained teacher cannot have right qua the post and a person who is not cannot have right qua the post and a person who is not cannot have right qua the post and a person who is not eligible for being appointed cannot claim any right to eligible for being appointed cannot claim any right to eligible for being appointed cannot claim any right to continue in the post. The petitioner is lacking the continue in the post. The petitioner is lacking the continue in the post. The petitioner is lacking the eligibility qualification, as laid down in Schedule "B" eligibility qualification, as laid down in Schedule "B" eligibility qualification, as laid down in Schedule "B" and, hence, the Respondent No.1 could not have and, hence, the Respondent No.1 could not have and, hence, the Respondent No.1 could not have successfully canvassed her claim for quashing the Order successfully canvassed her claim for quashing the Order successfully canvassed her claim for quashing the Order of termination before the Tribunal, as the respondent of termination before the Tribunal, as the respondent of termination before the Tribunal, as the respondent NO.1 was untrained teacher. It was open for the NO.1 was untrained teacher. It was open for the NO.1 was untrained teacher. It was open for the management to have terminated her services. No fault management to have terminated her services. No fault management to have terminated her services. No fault can be found with the termination Order, in view of the can be found with the termination Order, in view of the can be found with the termination Order, in view of the status of the Respondent NO.1 being that of untrained status of the Respondent NO.1 being that of untrained status of the Respondent NO.1 being that of untrained teacher. teacher. teacher.

4. The Tribunal has committed a patent illegality 4. The Tribunal has committed a patent illegality 4. The Tribunal has committed a patent illegality in directing reinstatement of an untrained teacher. If in directing reinstatement of an untrained teacher. If in directing reinstatement of an untrained teacher. If persons who are not eligible to be appointed are persons who are not eligible to be appointed are persons who are not eligible to be appointed are reinstated, the same is bound to adversely affect the reinstated, the same is bound to adversely affect the reinstated, the same is bound to adversely affect the education of the pupils partaking the education in such education of the pupils partaking the education in such education of the pupils partaking the education in such schools. Granting reinstatement to a candidate who is schools. Granting reinstatement to a candidate who is schools. Granting reinstatement to a candidate who is not eligible to hold the post, would be wholly illegal. not eligible to hold the post, would be wholly illegal. not eligible to hold the post, would be wholly illegal. As the judgment and Order of the Tribunal suffers from As the judgment and Order of the Tribunal suffers from As the judgment and Order of the Tribunal suffers from patent illegality, the same deserves to be quashed and patent illegality, the same deserves to be quashed and patent illegality, the same deserves to be quashed and set aside. set aside. set aside. In this view of the matter, the Writ Petition In this view of the matter, the Writ Petition In this view of the matter, the Writ Petition is allowed. is allowed. is allowed. The Impugned Order passed by the Tribunal, The Impugned Order passed by the Tribunal, The Impugned Order passed by the Tribunal, dated 13.4.1994 in Appeal No. 22 of 1992, is dated 13.4.1994 in Appeal No. 22 of 1992, is dated 13.4.1994 in Appeal No. 22 of 1992, is hereby quashed and set aside. hereby quashed and set aside. hereby quashed and set aside. Rule is made absolute in above germs with no Rule is made absolute in above germs with no Rule is made absolute in above germs with no Order as to costs. Order as to costs. Order as to costs. ... ... ... [A.P.DESHPANDE, J.] [A.P.DESHPANDE, J.] [A.P.DESHPANDE, J.] GR JD.No.4/98 dtd.3.7.76 Spl.HCASDD 28 GR JD.No.4/98 dtd.3.7.76 Spl.HCASDD 28 GR JD.No.4/98 dtd.3.7.76 Spl.HCASDD 28 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLAGE SIDE APPELLAGE SIDE APPELLAGE SIDE WRIT PETITION NO. 3849 OF 1994 WRIT PETITION NO. 3849 OF 1994 WRIT PETITION NO. 3849 OF 1994 DATE OF DECISION : January 16, 2007 DATE OF DECISION : January 16, 2007 DATE OF DECISION : January 16, 2007 For approval and signature : For approval and signature : For approval and signature : The Hon’ble Mr. Justice A.P.Deshpande : The Hon’ble Mr. Justice A.P.Deshpande : The Hon’ble Mr. Justice A.P.Deshpande :

1. Whether Reporters of Local Papers 1. Whether Reporters of Local Papers 1. Whether Reporters of Local Papers may be allowed to see the may be allowed to see the may be allowed to see the judgment? judgment? judgment?

2. To be referred to the Reporter or 2. To be referred to the Reporter or 2. To be referred to the Reporter or not ? not ? not ?

3. Whether Their Lordships wish to 3. Whether Their Lordships wish to 3. Whether Their Lordships wish to see the fair copy of the see the fair copy of the see the fair copy of the judgment? judgment? judgment?

4. Whether this case involves a 4. Whether this case involves a 4. Whether this case involves a substantial question of law as to substantial question of law as to substantial question of law as to the interpretation of the the interpretation of the the interpretation of the Constitution of India, 1950, or Constitution of India, 1950, or Constitution of India, 1950, or any Order made thereunder? any Order made thereunder? any Order made thereunder?

5. Whether it is to be circulated to 5. Whether it is to be circulated to 5. Whether it is to be circulated to the Civil Judges? the Civil Judges? the Civil Judges?

6. Whether the case involves an 6. Whether the case involves an 6. Whether the case involves an important question of law and important question of law and important question of law and whether a copy of the judgment whether a copy of the judgment whether a copy of the judgment should be sent to Nagpur, Goa & should be sent to Nagpur, Goa & should be sent to Nagpur, Goa & Aurangabad Office? Aurangabad Office? Aurangabad Office? ***** ***** *****