SUPREME COURT OF INDIA
State of Maharashtra & Ors.
Vs.
Tukaram Tryambak Chaudhari & Ors.
(Dr.Ar.Lakshmanan and Altamas Kabir,JJ.,)
20.02.2007
JUDGMENT
Altamas Kabir, J.
1. Leave granted in all the Special Leave Petitions.
2. The private respondents in all these special leave petitions had filed
several writ petitions in the Bombay High Court questioning the decision of the
authorities to treat them as Untrained Teachers although they were all graduate
teachers having B.Ed. qualification and approval having been granted for their
appointment as trained teachers. According to the said respondents, they had
all been appointed as Assistant Teachers in Primary Schools which conducted
classes up to the 7th standard, from about the year 1988 onwards. It is only
after a decision was taken to treat them as untrained teachers, despite being
fully trained and qualified, that they were compelled to move the several writ
petitions which were all allowed by a common judgment of the Bombay High Court
dated 6th May, 2004.
3. The case of the writ petitioners before the Bombay High Court was that they
were all graduate teachers having B.Ed. qualification and that they had been
appointed to teach in Primary Schools conducting classes up to the 7th
standard. In most of the cases, approval was granted for their appointment as
Trained Teachers. Subsequently, however, in 2001, they were all informed on
different dates that they would be treated as untrained teachers and would be
paid their salaries accordingly. According to the writ petitioners, in terms of
Government Resolution dated 26th October, 1982, they were entitled to be
appointed and continued as Trained Teachers in the B.Ed. scale. The respondents
in the several writ petitions, who are the appellants before us, had contended
before the High Court that B.Ed. qualification was not sufficient for being
treated as Trained Teacher in the Primary Schools and that what was required
was a D.Ed. qualification. It was contended that before joining the school, the
teacher concerned was required to hold the qualification of S.S.C. and D.Ed.
and that the teacher was also required to acquire a graduation degree while in
service along with a B.Ed. degree.
4. Relying on a Division Bench decision of the Bombay High Court in the case of Kondiba vs. State of Maharashtra & Ors1., referred to in paragraph 3 of the impugned judgment of the High Court, the Bombay High Court allowed all the writ applications and set aside all the impugned orders upon holding that teachers who possess B.A./B.Sc. and B.Ed. qualification are duly qualified and are eligible to continue to receive their salaries as Trained Teachers from the date on which they were appointed along with all consequential benefits and were also entitled to be paid the difference and any other consequential benefits within the period stipulated.
5. The State of Maharashtra is in appeal before us against the aforesaid decision of the Bombay High Court. Appearing for the appellants, Mr. S.K. Dholakia, learned senior counsel, submitted that in the State of Maharashtra classes from 5th to 7th standard are attached either with primary schools or with secondary schools. He submitted that the provisions of the Maharashtra Employees of Private Schools Rules, 1981 provides for the qualification of teachers for appointment to primary schools. Rule 6 provides that the minimum qualifications for the posts of teachers and the non-teaching staff in the primary schools are those specified in Schedule "B" which reads as follows:-
"Qualfiications for Primary Teachers":- (1) Appointment to the posts
of Primary school teachers (other than special teachers Drawing teachers) shall
be made by nomination from amongst candidates who have passed S.S.C.
examination or Matriculation examination or Lokshala examination or any other
examination recognised as such by Government and the Primary Teachers
Certificate Examination or Diploma in Education Examination, or Diploma in
Education (Pre-Primary of two years duration)
Note.- A person holding a Diploma in Education (Pre-primary of two years'
duration) shall be qualified to teach standards I to IV only notwithstanding
anything contained in the foregoing provisions
(a) Candidates who were recruited before the coming into force of these rules
in accordance with the recruitment rules then in force and who were thereafter
discharged for want of vacancies shall be eligible for reappointment.
(b) Other things being equal, preference may be given to
(i) Candidates who have passed the S.S.C. or other equivalent examination with
English, Mathematics and Science or any two of them and
(ii) Eligible women candidates obtaining the qualification mentioned at item
(i) through condensed courses.
2. Appointment to the post of Special Teacher (Drawing Teacher) in Primary
Schools shall be made by nomination from amongst candidates who have passed
S.S.C. examination and possess Art Teaches Diploma or Drawing Teachers
Certificate or Drawing Masters Certificate.
3. Primary School teachers whose date of first appointment as such teachers in
the service of a Zilla Parishad or Municipal School Board or Municipal
Corporation or Municipal Council or recognised private primary school is 15th
October 1966 or any prior date are exempted from acquiring S.S.C. and training
qualification.
4. Primary School teachers recruited prior to the 30th June 1972 and who are
possessing academic and training qualification according to the rules in force
at the time of their appointment are exempted from the S.S.C. and D.Ed.
qualifications. Those who were recruited after the 30th June 1972 and who do
not possess the S.S.C. and training qualifications should acquire the same
before June 1985. Failure to acquire these qualifications before June 1985
shall make them liable for termination of their services.
5. The Primary School teachers with S.S.C. plus S.T.C. or T.D. or D.T. (one
year) or Diploma in Education (one year) qualification who have been appointed
in service on or before the 30th September 1970 in primary schools shall be
regarded as trained and held eligible for the scale of pay for trained S.S.C.
teachers."
6. Mr.Dholakia submitted that the petitioners were all graduate teachers having
B.Ed. qualification and they were appointed to teach in primary schools
conducting classes from 1st standard to 7th standard. While the writ
petitioners were functioning as teachers in the primary schools, the Government
of Maharashtra in its Education, Employment and Youth Services Department,
adopted a Resolution on 14th November, 1979, with the aim of gradually removing
any discrimination regarding availability of teachers and other facilities for
5th to 7th standard classes attached to secondary schools and 5th to 7th
standard classes attached to primary schools run by Local Self Governing
Bodies. In the Notification itself it was noticed that in Maharashtra State,
there is similar syllabus for 5th to 7th standard classes in primary and
secondary schools but for these very classes there was a difference in staffing
pattern and other facilities. It was also noticed that as per the staffing
pattern then existing, for 5th to 7th standard classes attached to secondary
schools, for each class 1.3 teachers are appointed. In these three standards,
out of the four teachers, the first three teachers have H.S.C. and D.Ed.
qualification and the 4th teacher is a trained graduate teacher (graduate and
B.Ed). It was resolved that in primary schools also for the 5th to 7th standard
classes, if the conditions are prescribed and attendance of students was
fulfilled then for each standard 1.3. teacher is provided. All teachers in
these classes attached to the primary classes are with H.S.C. and D.Ed.
qualifications but in these classes of the primary schools at the existing
point of time there was no permission given for appointing trained graduate as
teachers. In order to remove this difference in the staffing pattern of 5th to
7th standard classes in these two kinds of schools, the Government decided that
in primary schools run by Local Self Governing Bodies where such schools are
entitled to four or more teachers, for 25% of approved strength of teachers in
those classes pay-scale could be available for trained graduate teachers in the
increased scale of pay.
7. It was also stipulated that the post of Primary Teaches converted into
Trained Graduate Teachers should only be from the cadre/category of Primary
Teachers and only in service Primary Teachers who were in full time service and
who fulfilled the educational qualifications mentioned should be appointed.
8. Paragraph 5 of the said Resolution further stipulated as follows:-
"On these converted post of increased pay scale of Rs.365-760/- in primary
schools, from below mentioned category, in service graduate primary teachers
(inclusive of trained teachers, who have completed stipulated training course
(D.Ed.) or primary teachers) should be appointed on following conditions:-
(a) Trained primary teachers who have obtained degree in Arts or Science (at
least by taking one subject which is being taught in primary schools) and
obtained degree in education i.e. B.Ed.
(b) Trained primary teachers who have done graduation in other subjects
(without taking any subject which is being taught in primary schools) but
obtained degree in education i.e. B.Ed. Primary teachers, falling in this category,
should be given new increased pay scale on such condition that "within 5
years of their appointment in the post of increased pay scale of Rs.365- 760/-,
they - at their own cost/expenses - should obtained degree by taking at least
one subject which is being taught in primary schools". If this condition
is not fulfilled, then for such teachers further increment in this new pay
scale should be stopped till he acquires that degree.
(c) Trained primary teachers who have done graduation in other subjects
(without taking any subject which is being taught in primary school) and who
have also not obtained degree in Education i.e. B.Ed. Primary teachers, falling
in this category, should be given new increased pay scale on such condition
that "within 5 years of their appointments in the post of increased pay
scale of Rs.365- 760/-, they - at their own costs/expenses - should obtained
degree by taking at least one subject which is being taught in primary schools
and also obtained degree in Education i.e. B.Ed. If this condition is not
fulfilled, then for such teachers further increment in this new pay scale
should be stopped till he acquires those degrees."
9. Mr.Dholakia submitted that as trained graduate teachers the writ petitioners
did not fulfill the eligibility criteria as indicated in paragraph 5 of the
Resolution extracted hereinabove and accordingly they were informed that they
would be treated as untrained teachers and paid salary accordingly.
10. Aggrieved by the decision of the State Government to treat them as
untrained teachers, despite their having the B.Ed. qualification, purportedly
as per the Government Resolution dated 14th November, 1979, the private
respondents in these appeals filed separate writ applications which, as
indicated hereinbefore, were all taken up for hearing together and disposed of
by a common judgment dated 6th May, 2004.
Mr. Dholakia urged that although the Government Resolution of 14th November,
1979 had been brought to the notice of the High Court, the High Court relied on
a Bench decision of the Bombay High Court in case of Kondiba vs. State of
Maharashtra (supra), in arriving at the conclusion that in schools having 1st
to 7th standards, it was permissible to appoint one teacher having B.Ed./B.Sc.
as per the State Government Circular.
11. Mr. Dholakia also submitted that a Full Bench decision of the Bombay High
Court in the case of Jayashree Sunil Chavan vs. State of Maharashtra and Ors2, .
reported in aking a different view, had been brought to the notice of the High
Court but the said decision appears not to have been considered by the High
Court while deciding the writ petitions filed by the private respondents
herein. Mr. Dholakia pointed out that in the said decision the same question
had fallen for consideration and it had been answered by the Full Bench by
holding that D.Ed. is the requisite minimum qualification for teaching students
in primary schools and a B.Ed. qualification cannot be treated as equivalent
thereto. In paragraph 22 of the judgment, the opinion of the State Teachers
Board to show how D.Ed. education is better suited for teaching primary
teachers was considered and it was mentioned that it was the opinion of the
State Teachers Training Board that candidates holding B.Ed. qualification could
not be treated as candidates holding the qualification equivalent to D.Ed. by
giving them mere training of two-three months.
12. Mr. Dholakia submitted that the mere fact that B.Ed. qualification was a
higher qualification than D.Ed. qualification could not be the reason for
holding that trained graduates holding B.Ed. degree were also eligible in terms
of the Government Resolution of 14th November, 1979 to be appointed in the 4th
post of Assistant Teacher in primary schools conducting classes for the 5th and
7th standards. In fact, such an argument was repelled by the Full Bench. Mr.
Dholakia urged that by ignoring the Full Bench decision referred to above, the
Bombay High Court misinterpreted the Government Resolution dated 14th November,
1979. On account of such error, the Bombay High Court committed a further error
by holding that of the 25% posts of the approved strength of teachers to be
converted into the pay scale of Rs.365-15-500-20-660/-, the same was meant for
trained graduate teachers which included graduate teachers holding a B.Ed.
degree, which was not the intention of the Government Resolution dated 14th
November, 1979. Mr. Dholakia submitted that paragraph 5 of the Resolution made
it clear that only in service graduate primary teachers, inclusive of trained
teachers who had completed stipulated training course (D.Ed.) could be
appointed to the converted posts in the increased pay-scale. It was urged that
such an interpretation finds support from the Full Bench decision. Submitting
that the approach of the High Court and its findings were erroneous and
contrary to the Government Resolution dated 14th November, 1979, Mr. Dholakia
urged that the impugned judgment of the High Court was liable to be set aside.
13. Mr. Dholakia's submissions were strongly opposed on behalf of the
respondents by Mr .R.S. Apte, advocate who urged that the High Court had
correctly interpreted the Government Resolution of 14th November, 1979 and the
interpretation now being sought to be given on behalf of the State was, in fact,
erroneous.
14. Mr. Apte contended that the Government Resolution of 14th November, 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 play for the 4th teacher who was a trained graduate teacher being a graduate as well as having the B.Ed. 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 H.S.C. and D.Ed. qualifications and that in these classes of primary schools there was no permission for appointing trained graduate 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 self governing bodies and having 5th to 7th standard classes, 25% of the posts of approved strength of teacher 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.
15. Mr. Apte submitted that paragraph 5 of the Government Resolution also
indicated that in the converted posts to the higher scale in service graduate
primary teachers, inclusive of trained teachers who had completed the D.Ed.
course could be appointed on the conditions as stipulated. Mr. Apte contended
that the said paragraph was an inclusive paragraph meant to include those
trained teachers who had completed the D.Ed. course with in service graduate
primary teachers who would thereafter be required to obtain the B.Ed. degree.
Mr. Apte contended that the Full Bench decision of the Bombay High Court in the
case of Jayashree Sunil (supra) had dealt with the question as to whether the
D.Ed. qualification is the requisite minimum qualification for teaching
students in primary schools and also whether the B.Ed. qualification could be
treated as equivalent thereto. He urged that although the Maharashtra Employees
of Private Schools Rules 1981 had been considered and referred to by the Full
Bench, and in particular Schedule 'B' thereof, the Government Resolution dated
14th November, 1979 had not been brought to its notice. On the other hand, the
said Resolution was considered in detail by the Division Bench of the Bombay
High Court in the case of Kondiba (supra) which had been decided on 12th
September, 2002. The Full Bench decision was made on 5th May, 2000 and dealt
with the question regarding the eligibility of the holder of a B.Ed. degree to
be appointed as a teacher in a primary school. Mr. Apte submitted that the
subject matter of consideration, as also the facts were different in the cases
before the Full Bench and the Division Bench and the decision rendered by the
Full Bench had no application to the facts of the instant case, whereas, the
issue in Kondiba's case (supra) was directly on the point and the High Court
correctly arrived at the decision in deciding the instant case.
16. Mr. Apte submitted that the order passed by the High Court and impugned in
the instant proceedings had been correctly made and no interference was called
for therewith. We have carefully considered the submissions made on behalf of
the respective parties. Having particular regard to the fact that though
standards 5 to 7 were attached to both primary schools as well as secondary
schools, these classes in fact, represented the middle schools for which
different standards were being followed.
17. Conscious of such disparity in respect of teachers who are similarly situated but were treated differently on account of their being attached to primary schools and/or secondary schools, the State Government resolved to eliminate such differences and to make provisions for trained graduate teachers to be upgraded to a higher scale to the extent of 25% of the posts. The said Resolution consciously refers to in service graduate primary teachers who were eligible for appointment to the posts in the increased pay-scale. In fact, one of the conditions for appointment of in service graduate primary teachers to the converted post carrying the higher pay-scale was that such teacher should have obtained a degree in Arts or Science and had also obtained a degree in education namely, B.Ed. While adopting the aforesaid Resolution, the Government was, therefore, fully aware of the fact there were graduate teachers teaching in standards 5 to 7 in the primary schools. This fact was also referred to by the Division Bench of the High Court in its judgment under appeal. It has been mentioned that one of the contentions raised on behalf of writ petitioners was that in terms of Government Resolution dated 26th October, 1982, the petitioners were entitled to be appointed and continued as trained teachers in B.Ed. scale.
18. As has been pointed out by Mr. Apte, the said Government Resolution does
not appear to have been brought to the notice of the Full Bench which rendered
its decision on the reference made to it on the basis of the Maharashtra Rules
of 1981 in respect whereof conflicting views had been taken with regard to the
eligibility of a graduate, also holding the B.Ed. degree to be appointed in a
primary school. The Resolution of 1979 was dealing with a situation which was
prior to the enactment of the said Rules and which contemplated the existence
and appointment of graduate teachers in primary schools.
19. The decision rendered in Kondiba's case (supra) is closer to the facts of
this case. The High Court, in our view, did not commit any error in following
the same upon distinguishing the decision rendered by the Full Bench on account
of the said Resolution and the Resolution dated 12th November, 2001 adopted on
the basis thereof.
20. We, therefore, find no reason to interfere with the decision rendered by
the High Court which has been impugned in these appeals which are accordingly
dismissed but without any order as to costs.
Judgment Referred.
1(2000 CriLJ 0336
2(2000) 3 MahLJ 0605