RAVINDRA v. GHUGE &Y. G. KHOBRAGADE, JJ.RESERVED ON
Facts
( 1 ) wp 11701.19IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 11701 OF 2019 Sayas s/o Nagnath Surnar,Age: 29 Years, Occ. Service as Asst. Teacher, R/o. Kul Swami Nagar, Barshi Road,Tq. and Dist. Latur....PETITIONERV/s.1. The State of MaharashtraThrough its Secretary, Education Department Mantralaya, Mumbai-32.2.The Education Officer (Primary),Zilla Parishad, Latur.3.Bhartiya Dnyanvardhani Lok VikasSanstha, Helamb, Tq.Devni, Dist. LaturThrough its Secretary4.Netaji Subash Chandrabos PrimaryVidhayala, Subhashnagar, Barshi Road,Latur, Tq. and Dist. LaturThrough its Headmaster.5.Balbhim Tukaram Rathod,Age Major, Occ. Service as Asst. Teacher,Netaji Subhash Chandrabos PrimaryVidayala, Subhashnagar, Barshi Road,Latur, Tq. and Dist. Latur.6.Chief Executive Officer,Zilla Parishad, Latur.... RESPONDENTS ( 2 ) wp 11701.19...Mr. V.S. Panpatte, Advocate for the PetitionerMr. P.K. Lakhotiya, AGP for Respondent-StateMr. V.C. Patil h/f. U.B. Bondar, Advocate for R/2Mr. G.A. Gadhe, Advocate for Respondent Nos.3 & 4 Mr. R.D. Biradar, Advocate for Respondent No.5…CORAM : RAVINDRA V. GHUGE &Y. G. KHOBRAGADE, JJ.RESERVED ON :2nd February, 2024 PRONOUNCED ON :4th April, 2024JUDGMENT (Per: Y. G. Khobragade, J.) :-1.Rule. Rule made returnable forthwith and heard finally with theconsent of the parties.2.By the present petition under Article 226 of the Constitution ofIndia, the Petitioner has put forth prayer clause- B’, C & D as under:“B)By issue of Writ of Mandamus or any other Writ or directionsin like nature, the impugned order dt. 26.6.2019 passed by theRespondent No.2 Education Officer (Primary) Zilla Parishad Latur,may kindly be quashed and set aside.C)By issue of Writ of Mandamus or any other Writ or Directionsin like nature, the impugned order dt. 26.6.2019 passed by theRespondent No.2 Education Officer (Primary) Zilla Parishad Latur,may kindly be modified and salary of the petitioner be continued asAssistant Teacher working with respondent no. 4 schoolD)To hold and declare that the impugned order dt. 26.6.2019passed by the respondent no. 2 Education Officer (Primary) ZillaParishad Latur is null and void.”
Legal Reasoning
( 10 ) wp 11701.19framed by the State. However, in the case in hand, Respondent No. 5 was notdirectly appointed on 100% grant in aid post and his initial appointment isbeing a Graduate Primary Teacher on unaided post with the Respondent No. 4,hence, appointment of Respondent No. 5 cannot be termed as directappointment to the said post. Therefore ratio laid down in cited case is notapplicable to the facts and circumstances of this case. 13. On perusal of impugned order dated 08.11.2016 (Annex.I), itprima facie appears that, the Respondent No. 2 Education Officer passed anorder in reference to proposal dated 07.10.2016 submitted by Respondent No.3 seeking approval to the appointment of one Dhondiram Vilas Sagare beinggraduate primary teacher. Accordingly, Respondent No. 2 granted approval. On26.06.2019, Respondent No. 2 issued a communication while grantingpermanent approval to Respondent No. 5 considering the fact that, he was onlyB.A., B.Ed. graduate candidate, therefore, sanction was accorded in pay scale ofRs. 9300-34800 w.e.f. 14.11.2011 on probation of 2 years and on completion ofprobation period, the appointment of the Respondent was approved on no-grant basis w.e.f. 14.11.2013. Further, as per reference No. 4 i.e. ResolutionNo. 3218/2018 dated 14.09.2018 passed by Respondent No. 3 Management,Respondent No. 5 was the sole Graduate Teacher candidate from VJ (A)category. Therefore, as per Government Resolution, 20% grant was sanctioned ( 11 ) wp 11701.19to the 7 Assistant Primary Teacher and 1 Graduate Primary Teacher. Further asper reference No. 6, the post of Graduate Primary Teacher was directed toconvert in grant in aid, however, proposal for approval was submitted inrespect of the Petitioner instead of Respondent No. 5, though the Petitioner wasD.Ed. and Respondent No.5 was B.A. and B. Ed.. Therefore, on 26.06.2009,Respondent No. 2 passed the impugned order and granted permanent approvalto the appointment of Respondent No. 5 on 20% grant-in-aid basis w.e.f.14.11.2013 i.e. on completion of 2 years probation period, which certainlyappears legal, just and proper. Therefore, we do not find merit in this petition.14.In view of above discussion, present petition is dismissed.Accordingly, Rule is discharged. [Y.G. KHOBRAGADE, J.][RAVINDRA V. GHUGE, J.]mub
Arguments
( 3 ) wp 11701.193.Heard the counsels appearing for respective parties, Adv. V. S.Panpatte for Petitioner, Mr. P. K. Lakhotiya, AGP for Respondent No. 1 and Adv.V. C. Patil, h/f. Adv. U. B. Bondar for Respondent No. 2, Adv. G. A. Gadhe forRespondent Nos. 3 & 4, and Adv. R. D. Biradar, for the Respondent No. 5, atlength. Besides oral arguments, the learned counsel for the Petitioner as well asRespondent Nos. 3, 4, & 5 have tendered written notes. 4.The learned counsel for the Petitioner submits that the Petitionerwas appointed as an Assistant Teacher after due selection process by theRespondent No. 3 Management, vide appointment order dated 11.06.2011 onprobation for 2 years. He was posted with the Respondent No. 4 - Schoolagainst vacant and sanctioned post . At the time of appointment the Petitionerwas HSC., D.Ed. and subsequently he did B.A.. The Respondent No.2 -Education Officer granted approval to the appointment of the Petitioner videorder dated 20.04.2012 on Non-Aided basis. In the year 2012-2013, theRespondent No.4 - School, started receiving 20% grant-in-aid. The Petitionersuccessfully completed probation period, therefore, vide order dated22.07.2014 issued by the Respondent No. 2, the Petitioner was grantedapproval as permanent employee w.e.f. 11.06.2013 on 20% partial grant-in-aidfrom the month of June, 2012. Total 8 posts were sanctioned with theRespondent No. 4 for Non-Aided category. The Petitioner’s appointment was ( 4 ) wp 11701.19as per the approved staffering pattern. In the academic year 2012-2013, out of9 posts, 8 posts have been brought on partial aided and 1 post was allotted toprimary graduate teacher on no grant basis. One (1) post of Headmaster waskept under Non-aided category vide order dated 10.02.2015 issued byRespondent No.2 and the same position was maintained while releasing grantin aid from 20% to 60%, 80% and 100%. 5.The Respondent No.2 - Education Officer, granted permanentapproval to the Petitioner as a primary teacher vide order 22.07.2014 andstages wise grants order. However, on 26.06.2009, Respondent No.2 passed theimpugned order thereby granted permanent approval to the appointment of theRespondent No.5 on 20% grant-in-aid basis w.e.f. June, 2012 on completion of2 years of probation period as on 14.11.2013 though he is junior to thePetitioner and no proposal forwarded by the Respondents Nos.3 & 4. Therefore,impugned order is illegal, bad in law, hence, prayed for quashing and setttingaside the same, so also, the Petitioner is entitled to receive continuous salarybeing an Assistant Teacher.6.Mr. Bondar, the learned counsel for the Respondent No. 2Education Officer, submits that, as per the approved staffing pattern and GRdated 29.11.2012, 7 posts of Assistant Teacher as well as 1 post of GraduateTeacher in the Respondent no. 4 School has been sanctioned. The Respondent ( 5 ) wp 11701.19No. 4 School started receiving 20% grant in aid from the month of June 2012.As per approved staffing pattern only 7 posts of Assistant Teacher and 1 post ofGraduate Teacher were sanctioned with the Respondent No. 4 School. However,at the time of appointment, Respondent No.5 was the only graduate teacher i.e.B.Ed. Therefore, Respondent No. 2 granted approval to the appointment ofRespondent No.5 on 01.05.2012. As per GR dated 29.12.2015, RespondentNo.5 is granted the pay scale w.e.f. 01.06.2019 on 20% grant in aid basis. ThePetitioner was not having B.A. B.Ed.,therefore, he was not appointed as aprimary Graduate Teacher. Hence, the Petitioner is not entitled for the pay scaleof primary graduate teacher. Therefore, impugned order is just and proper,hence, prayed for dismissal of the petition.7.Adv. G.A. Gadhe, the learned counsel for the Respondents Nos. 3 &4 submits that, though the proposal for grant of approval in respect ofRespondent No. 5 was not submitted, still the Respondent No. 2 EducationOfficer suo moto accorded approval contrary to admissible strength of theteachers on establishment of the Respondent No. 4 School. So also, there wereno reasons for withholding salary of the Petitioner, as the Petitioner’sappointment was against the sanctioned post. As per approved staffing pattern,only one post of trained graduate teacher was available and Mr. SugareDhondiram Vilasrao was already appointed against the said post. Only 7 posts ( 6 ) wp 11701.19of Assistant Teachers and one post of Headmaster are sanctioned andadmissible for grants. Since, the appointment of Respondent No.5-BalbhimTukaram Rathod is against the unaided post, therefore, the Respondent No. 2ought to have rejected the approval to the appointment of the Respondent No.5, hence, submits for passing suitable orders. 8.The learned counsel for the Respondent Nos. 3 & 4 relied onJudgment dated 04.07.2019 passed by Co-ordinate Bench of this Court in WritPetition No.1493/2018 (Suryakant Janardhan Muge V/s. The State ofMaharashtra and ors.), wherein it has been held that, if the Assistant Teacheron unaided post has worked for last more than 3 years and is transferred to theaided post, then he will have to work as Shikshan Sevak till he completes 3years of service from the date of his initial appointment on unaided post thatwould be in conformity with the scheme of Shikshan Sevak framed by theState.9.Adv. R.D. Biradar, the learned counsel for Respondent No.5 submitsthat, Respondent No. 2 approved the staffing pattern for the academic year2011-2012, wherein out of 8 posts, 1 post of Teaching staff of Graduate Teacherfor Primary section was approved. At the time of appointment, Respondent No.5 was only graduate candidate and the Petitioner was HSC D.Ed. Therefore,the Respondent No. 2 Education Officer, granted approval for appointment of ( 7 ) wp 11701.19the Respondent No.5 on 01.05.2012 on ‘No Grant’ basis and after completion ofprobation period, the Respondent No. 5 granted approval w.e.f. 14.11.2013 on‘No Grant’ basis being graduate primary Teacher. Further, as per GR dated29.12.2015, Respondent No.5 was granted pay scale w.e.f. 01.06.2019 on 20%Grant-in-aid basis, because Respondent no. 5 was only eligible. The Petitionerwas not qualified for the post of primary graduate teacher, therefore he is notentitled for the pay scale of primary graduate teacher. Respondent No. 5belongs to VJNT category and out of 8 posts, 1 post was reserved for primarygraduate under VJNT category. Respondent No. 3 Management submitted theproposal for regularizing appointment of Respondent No. 5. On 29-11-2012,the Respondent No. 1 State Government granted step by step grant-in-aid 20%to various Schools and name of Respondent No. 4 School appeared at serial No.180. The approved post of teacher in 20% aid are 7 post for HSC., D.Ed and 1post for Primary Graduate. On 15.03.2013, the Deputy Director of Educationissued a communication and approved 8 posts i.e 7 posts of D.Ed category and1 post for Graduate Category, however, no approval was granted on grant-in-aid basis. Therefore, on 11.12.2018, Respondent No.5 submitted therepresentation for inclusion of his name in the Shalarth ID. On considerationof the Petitioner’s grievance, the Respondent No. 2 Education Officer, grantedapproval for appointment of the Respondent No. 5 in 20% Grant-in-aid basis,which is legal, just and proper, hence, prayed for dismissal of the petition. ( 8 ) wp 11701.1910.Having regard to the rival submissions canvased on behalf of therespective parties, we have gone through the record. It is not in dispute that,allocation of 20 % to 100 % grant in aid to the Respondent No. 4 School by theState Government. It is also not in dispute that, on 11.06.2011, the Petitionerwas appointed as an Assistant Teacher with the Respondent No. 4 on probationfor 2 years and posted with the Respondent No. 4 School against vacant andsanctioned post. At the time of appointment, the Petitioner was having HSC,D.Ed.. On 20-04-2012, the Respondent No. 2 Education Officer, grantedapproval to the appointment of Petitioner on No Grant basis. Later on in theyear 2015, the Petitioner completed B.A. However, Respondent No. 5 was B.A.B.Ed., and appointed with the Respondent No. 4 School on 14.11.2011 being aGraduate Primary Teacher on No grant basis. The appointment of RespondentNo. 5 was duly approved by Respondent No. 2 on 04.05.2012 on proposalsubmitted by the Respondent No. 3 Management.11.Needless to say that, on 15.03.2013, the Deputy Director ofEducation approved teaching staffing pattern of the Respondent No. 4 School,wherein total 8 posts were approved out of which 7 posts of D.Ed category and1 (one) Post for Graduate Category is sanctioned. As per 100% roster points,one post each is reserved for SC, ST, and VJNT. The Petitioner belong to VJNTand Respondent No. 5 belong to VJ (A) category. The Respondent No. 4 School ( 9 ) wp 11701.19started getting 20% grant in the year 2012-2013. Since, the Petitionercompleted probation period, therefore, on 22.07.2014, the Respondent No. 2granted approval to the Petitioner being permanent employee w.e.f. 11.06.2013on 20% partial grant-in-aid from June, 2012. At the time of appointment, theRespondent No. 5 was only graduate candidate, therefore, he was appointedbeing a Graduate Primary Teacher and the Petitioner was HSC D.Ed., therefore,he was appointed being a Assistant Primary Teacher. Therefore, it is clear that,on the date of appointment the Petitioner was not senior to Respondent No.5.The Respondent No.2 Education Officer granted approval to the appointment ofRespondent No. 5 on 01.05.2012 on No Grant basis and after completion ofprobation period, service of Respondent No. 5 was regularized permanentlyw.e.f. 14.11.2013 being graduate primary Teacher. Since the Petitioner did notpossess B.A., degree as on 29.11.2012 i.e. on the day on which allocation of20% grant made applicable. Therefore, the Petitioner is not entitled to receivecontinuous salary being a graduate Primary Teacher.12. No doubt, as per the view taken in case of Suryakant JanardhanMuge (supra), if the Assistant Teacher on unaided post has worked for lastmore than 3 years and is transferred to aided post, he will have to work asShikshan Sevak till he completes 3 years of service from the date of his initialappointment on unaided post in conformity with the scheme of Shikshan Sevak