Matters Related to the Teaching Staff of Special Institutions

Surekha d/o Nagorao Pawar (Kumari) and Ors vs. State of Maharashtra and Ors

Filed under: Section 51 & 52 of the Persons with Disabilities Act, 1995
Section 2 (20) & 3(1) of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977
Appellants: Surekha D/o Nagorao Pawar (Kumari) and Ors
Respondent: State of Maharashtra and Ors
Citation: 2001(3) Bom CR 200
Court: In the High Court of Bombay (Aurangabad)
Judge: D.Y Chandrachud

Facts

Surekha and other Assistant Teachers had been employed by Vastal Vithal Ashti Vyang Vidyalaya, Gangakhed. This institution was run for the benefit of physically handicapped persons. Surekha was appointed as an assistant teacher on 1st April 1992.

She continued in the employment of the institution until the academic year 1998-99. The District Social Welfare Officer, Prabhani, accorded his approval for her appointment for the year 1993-94, 1994-95, 1995-96, 1996-97, 1997-98 and 1998-99.

In 1995, Parliament enacted the ‘Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act’, which was an Act to make special provisions with respect to persons suffering from disabilities.

The State Government was empowered by section 52 of the Act to grant a certificate of registration when it was satisfied that the applicant had complied with the requirements of the Act and the Rules, which had been made there under.

Sub-section (3) of section 52 provided that no certificate of registration should be granted under sub-section (2) unless the institution with respect to which an application had been made was in a position to provide the facilities and maintain the standard which were prescribed by the State Government.

In 1985, the State Government framed a Code for the physically handicapped through the Social Welfare Department. The Code of 1985 made the provisions for the proper regulation and conduct of institutions meant for physically handicapped persons.

The qualification required for persons to be appointed to the teaching staff of such institutions was specified in the Code. As far as institutions for orthopaedically handicapped persons were concerned, the minimum qualification that was prescribed was D.Ed. In the Code of 1985, it had also been provided, that untrained teachers who had been recruited in such institutions would have to acquire the prescribed qualifications within a period of 5 years.

In 1997, a Circular was issued by the State Government through the Department of School Education in which the question of permitting untrained teachers the benefit of pursuing the special D.Ed. course was considered.

The said Circular provided that those untrained teachers who had been appointed in recognized schools and in whose cases Education Officers had granted approval prior to June 1997, should be continued further in service. In the case of such teachers, the facility of completing the D.Ed. through the postal or correspondence course was permitted.

Surekha and others had submitted their application forms to various authorities for the completion of the postal D. Ed. Course between 1996-97 and then 1999-2000.

They had subsequently filed a Writ Petition in which a direction for the supply of forms and acceptance of the forms was sought. The single judge directed that, the forms submitted by them would be scrutinized, but the acceptance thereof would not be construed as an admission.

Thereafter, the forms were supplied and processed. The 3rd respondent (name not mentioned), while forwarding the forms to the Deputy Director, Postal Training Scheme, Maharashtra State Educational Research Training Council, Pune, stated that the services of Surekha and others would not be terminated until the completion of the course.

The grievance of Surekha and others was that despite the undertaking, they had been removed from their services and thus they appealed against the order before the Divisional Social Welfare Officer, Aurangabad.

The order of termination was stayed but in the mean time, the Deputy Director, Postal Training Scheme, rejected their applications on the ground that the facility of pursuing the D. Ed. Course was not available to teachers working in schools for the physically handicapped.

Consequently, they filed another Writ Petition, at which stage a statement was made by the state government that all the applications for admission to the D. Ed course had been accepted. The Writ Petition was therefore disposed off as withdrawn.

While Surekha and others were pursuing the second session of the course, their appeals against the initial order of termination which had been stayed before the Divisional Social Welfare Officer, Aurangabad, were dismissed, on the ground that they had to finish their training within five years of appointment, which they had not done and therefore, their termination was lawful and proper. Aggrieved, Surekha and others filed the present Writ Petition.

Arguments made on behalf of Surekha &Ors

It was argued on behalf of Surekha & Ors. that they had made all possible efforts within their control to ensure that they would be admitted for the postal D.Ed. course within the specified time limit.

Further, it was argued that as they had worked since 1992, there was no reason why they should be discontinued during the period when they were pursing the D.Ed. course. Reliance had also been placed on the Code of 1985 under which it was permissible for untrained teachers employed in schools meant for the physically handicapped to complete their course of training within a period of 5 years.

It was also argued that their training could not be completed for the reason that the authorities were not inclined to accept the forms for the D.Ed as a result of which the teachers had to seek recourse to proceedings before this Court.

Reliance was also sought to be placed on a Circular dated 28th September, 1998 of the Director of Social Welfare in which it has been stated that if an institution for the physically handicapped had recruited untrained teachers after 7th July, 1993 then the approval ought not to be granted thereto.

In this regard, it was argued that all petitioners were appointed prior to that date, in the academic year 1992-93, and therefore, they should be permitted to continue in service during the period when they were in the process of completing the D.Ed course.

Arguments made on behalf of the State of Maharashtra

It was argued on behalf of State that a specific period was granted to untrained teachers working in institutions meant for the physically handicapped, to complete the D.Ed course.

It was argued that the earlier Code of 1985 had since been substituted by the Code of 1997. According to the Government, it was the duty of the Management of the special institution to ensure that teachers with the requisite qualification of D.Ed. were recruited.

A reference was also made to the Act of 1995 in which it had been provided, that an institution should not be established or maintained for persons with disabilities expect in accordance with the certificate of registration granted by the State Government.

The said certificate stipulated that the institution should ensure that all the teachers who were engaged were trained teachers. In the affidavit it had been further stated that after the services of these teachers was discontinued, the management appointed five other teachers on 1st March, 2000 but except one, who possessed a D.Ed. qualification, the other four teachers did not fulfill the required qualifications.

Observations of the Court

It was held by the Court that Parliament enacted the Act of 1995 in order to make special provisions in regard to regulation of institutions meant for physically handicapped persons.

Chapter X of the Act dealt with the recognition of institutions for persons with disabilities. No institution for the physically handicapped could function unless it had a certificate of registration.

Before a certificate of registration was granted, the institution concerned had to be in a position to provide facilities and maintain standards, which were prescribed by the State Government.

It was further held that in the present case the State Government had prescribed as a required educational qualification that a teacher must have passed the D.Ed. course.

Having regard to the object and purpose of the Parliamentary enactment and having due regard to the Code which had been formulated by the State Government, the Court stated that it was necessary that a management of an institution for the physically handicapped, appointed persons only with the required qualifications.

The Court further stated that considering that the fact that the teachers in question were in service since 1992 and that they had also been admitted to the postal D.Ed. course, it would be open to the management to engage them during the period when they were pursuing the postal D.Ed. course.

Though it was true that by the Code of 1985 a period of 5 years was granted for completing the training for the purpose of achieving the prescribed qualifications, the circumstances of the present case showed that the teachers were not wanting in the efforts required to be made for achieving the prescribed qualifications.

In the Writ Petitions, detailed reference had been made to the efforts which were made to secure admission to the postal D.Ed. course and the representation which had been made from time to time to the authorities to permit them to pursue their studies.

Therefore, having regard to this factual background, it could not be said that the teachers were lacking in bona fides of due diligence in pursuing the D.Ed. course. It was also made clear that the teachers who were pursuing the D.Ed. course must complete the said course within the normal period, which they accepted.

The Writ Petition was accordingly allowed.

Sections Referred:

• Section 51 & 52 of the Persons with Disabilities Act, 1995