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CASE NO.: Appeal (civil)  863 of 2007

PETITIONER: STATE OF MAHARASHTRA & ORS

RESPONDENT: TUKARAM TRYAMBAK CHAUDHARI & ORS

DATE OF JUDGMENT: 20/02/2007

BENCH: Dr.AR. Lakshmanan & Altamas Kabir

JUDGMENT: J U D G M E N T

ALTAMAS KABIR, J.

       Leave granted in all the Special Leave Petitions.         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.         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.         Relying on a Division Bench decision of the Bombay High  Court in the case of   Kondiba   vs.  State of Maharashtra   & Ors., 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

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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.    

       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 \026  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 \026

(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 \026

(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.

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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."    

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

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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. 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. 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

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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."   

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. 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. 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 Ors,.  reported   in  2000 (3) Mah. L.J.  605, taking 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. 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

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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. 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. 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. 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

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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. 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. 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. 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. 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

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Resolution and the Resolution dated 12th November, 2001  adopted on the basis thereof. 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.