Ors Vs. Tukaram Tryambak Chaudhari & Ors  Insc 176 (20 February 2007)
Dr.AR. Lakshmanan & Altamas Kabir
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 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":-
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
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.
Other things being equal, preference may be given to
have passed the S.S.C. or other equivalent examination with English,
Mathematics and Science or any two of them and
eligible women candidates
obtaining the qualification mentioned at item (i) through condensed courses.
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.
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
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.
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.
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.
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:-
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.
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.
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."
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
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,
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
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
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
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
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
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.
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 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.