10484.12 WP+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10484 OF 2012
Smt. Sangita Banshiram Jajage,
Age 39 Years, Occ : Service
R/o. C/o. Adsul [B.G.], Plot No.6
Sambhaji Nagar, Pipe Line Road
Savedi, Ahmednagar PETITIONER
1]
VERSUS
The State of Maharashtra
Through its Secretary,
Education Department,
Mantralaya, Mumbai - 32
2] The Education Officer,
[Secodnary] Zilla Parishad,
Ahmednagar
3] Gramvikas Vidya Prasarak Mandal
At Post Nimblak, Taluka
and District Ahmednagar
Through its Secretary
4] The Head Master
Madhmiyak Vidyalaya,
Isalak Nimblak, At Post Nimblak
Tq. and District Ahmednagar.
5] Smt. Vaishali Digambar Choudhary
Age: 30 Years, Occ: Service,
Madhmiyak Vidyalaya,
Isalak-Nimblak at post
Nimblak Tq & District
Ahmednagar
RESPONDENTS
Mr. A.N.Kakade, Advocate for the Petitioner
Mr. V.H.Dighe, AGP for the respondent No1.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:53 :::
10484.12 WP+
2
Mr. R.R.Karpe, Advocate for the respondent Nos. 3 & 4
Mr. Deelip Patil Bankar, Advocate for the respondent No.5.
Respondent No.2 Served.
WITH
WRIT PETITION NO.8286 OF 2012
Sunita w/o Yeshwant Panchmukh,
Age 49 Years, Occ : Service
Madhyamik Vidyalaya, Isalak,
Nimblak, Taluka and District
Ahmednagar
ig PETITIONER
VERSUS
1] The State of Maharashtra
Through its Secretary,
Education Department,
Mantralaya, Mumbai - 32
2] The Education Officer,
[Secodnary] Zilla Parishad,
Ahmednagar
3] The Head Master
Madhmayak Vidyalaya,
Isalak Nimblak, Taluka and
District Ahmednagar.
4] The President / Secretary,
Gramvikas Vidya Prasarak
Mandal, Islak Nimbalak,
Taluka and District
Ahmednagar
RESPONDENTS
Mr. V.D.Bedre, Advocate for the Petitioner
Mr. V.H.Dighe, AGP for the respondent No1 & 2.
Mr. R.R.Karpe, Advocate for the respondent Nos. 3 & 4
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::
10484.12 WP+
3
WITH
WRIT PETITION NO.7523 OF 2013
Smt. Vaishali Digambar Choudhary,
Age - 30 Years, Occu : Service,
R/o. Isalak-Nimblak,
Tq. & Dist. Ahmednagar PETITIONER
VERSUS
1] The State of Maharashtra
Through its Secretary,
Education Department,
Mantralaya, Mumbai
2] The Education Officern [Secondary],
Zilla Parishad, Ahmednagar
3] Gramvikas Vidya Prasarak Mandal
At Post Nimblak, Tq. & Dist. Ahmednagar
Through its Secretary
4] The Head Master
Madhyamik Vidyalaya,
Isalak Nimblak, At Post Nimblak
Tq. and Dist. Ahmednagar.
5] Smt. Santiga Banshiram Jajage,
Age: 39 Years, Occ: Service,
R/o. Adsul [B.G.], Plot No.6,
Sambhaji Nagar, Pipe Line Road,
Savedi, Ahmednagar
RESPONDENTS
Mr. Deelip N. Patil Bankar, Advocate for the Petitioner
Mr. V.H.Dighe, AGP for the respondent No1 and 2
Mr. R.R.Karpe, Advocate for the respondent Nos. 3 & 4
Mr. A.N.Kakade, Advocate for the Respondent No.5.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::
10484.12 WP+
4
WITH
WRIT PETITION NO.10161 OF 2012
Smt. Shanta d/o. Murlidhar Kotkar
Age: 40 Years, Occup : Teacher
Resident of Village: Nimbalak,
Tq. & Dist. Ahmednagar
PETITIONER
VERSUS
1] The State of Maharashtra
Through Secretary,
Education Department,
Mantralaya, Mumbai - 32.
2] The Education Officer [Secodnary],
Zilla Parishad, Ahmednagar
Dist. Ahmednagar
3] Gramvikas Vidya Prasarak Mandal
Isalak-Nimblak,
Tq. & Dist. Ahmednagar
Through its Secretary
4] The Head Master
Secondary School,
Isalak-Nimbalak, Tq. & Dist. Ahmednagar.
5] Smt. Vaishali Digambar Choudhari
Age: Major, Occup. Teacher,
Resident of Vadgaongupta,
Tq. & Dist. Ahmednagar
RESPONDENTS
Mrs. Asha Sanjay Rasal, Advocate for the Petitioner
Mr. V.H.Dighe, AGP for the respondent No1 & 2
Mr. R.R.Karpe, Advocate for the respondent Nos. 3 & 4
Mr. Deelip Patil Bankar, Advocate for the respondent No.5.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::
10484.12 WP+
5
CORAM : S.S. SHINDE &
A.M.BADAR, JJ.
RESERVED ON : 09/10/2015
PROUNCOUNCED ON : 16/11/2015
...
JUDGMENT (S.S. SHINDE, J) :
Rule. Rule made returnable forthwith. By consent of the learned counsel appearing for the parties, heard finally.
2. Writ Petition No. 10484 of 2012 takes exception to the order dated 8th November, 2012 passed by Respondent No.2, thereby regularizing the services of Respondent No.5 -Smt. Vaishali Digambar Choudhari w.e.f. 15th July, 2008. The petitioner seeks further directions to Respondents to grant B.Ed. Pay scale to the petitioner w.e.f. 1st June, 2008.
3. The learned counsel appearing for the petitioner submits that, the petitioner, who possesses the qualification of S.S.C., D.Ed., B.A. (English), M.A.
(English) and B.Ed. (English and Marathi method), was ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 6 appointed as assistant teacher in the year 1993 by following due procedure. It is submitted that, at the relevant time, 61 periods workload per week was available for teaching English subject, but only one teacher i.e. B.N. Kotkar was available to teach the said subject. It is submitted that, one teacher namely A.M.
Kale stood retired on 31st March, 2008, on attaining the age of superannuation, as a result of which, one post of trained graduate teacher has fallen vacant. The petitioner made various representations and requested to Respondent No.2 to grant benefits of trained graduate pay scale as per the available workload and being the senior most teacher for teaching the English subject.
The Respondent No.2 on 29th October, 2009, issued letter to the Management, wherein the direction was given to submit the proposal of the petitioner for appointment as trained graduate teacher. It is further submitted that, the petitioner, being aggrieved by the ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 7 inaction on the part of the Respondents, filed Writ Petition No. 9053 of 2011, before the High Court seeking directions to the Management to forward the proposal of the petitioner for grant of B.Ed. pay scale.
In the said petition, the reply was filed by the Education Officer supporting the claim of the petitioner. During pendency of the said Petition, on 3 rd January, 2012, the Respondent - Management forwarded the proposal of the petitioner to Respondent No.2 for grant of B.Ed. pay scale. In that view of the matter, the said Writ Petition came to be disposed of in view of the proposal forwarded by the Management.
4. On 19th July, 2012, the Respondent -
Education Officer was pleased to grant B.Ed. pay scale to petitioner w.e.f. 1st June, 2008. It is submitted that, the decision of the Education Officer was assailed before the High Court by way of filing Writ Petition No. 6550 of 2012 by Smt. Vaishali Choudhary. The said Writ Petition was disposed of by giving direction to the ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 8 Education Officer to hear all concerned and take appropriate decision. It is submitted that, by way of impugned order, Respondent No.2 regularized the services of Respondent No.5 w.e.f. 1 st July, 2008, though her appointment is not as per the procedure and the department has already rejected her proposal for grant of approval. The learned counsel appearing for the petitioner invited our attention to the pleadings in the Petition, grounds taken therein and submits that, the earlier decision of the Education Officer granting B.Ed. pay scale to the petitioner w.e.f. 1 st June, 2008 was correct. While disposing of Writ Petition no. 6550 of 2012, the High Court did not observe that, the petitioner's claim should not be considered w.e.f. 1 st June, 2008. The learned counsel appearing for the petitioner placed reliance on the relevant provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rules, 1981, and also the Instructions issued by the Director of Education, Secondary and Higher Secondary, State ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 9 of Maharashtra, Pune, dated 27th July, 2001 to all concerned informing that, the concerned institutions shall appoint teachers subjectwise. The learned counsel appearing for the petitioner submits that, contents of the said resolution would make it clear that, whatever there are vacancies in the B.Ed. pay scale, those are required to be filled in from the teachers, who are already working in the said school in D.Ed. pay scale.
The learned counsel further invited our attention to the exposition of the Hon'ble Supreme Court in the case of State of Maharashtra and ors V/s Tukaram Tryambak Chaudhari and Ors1 Therefore, the learned counsel appearing for the petitioner submits that, the Petition deserves to be allowed.
5. Writ Petition no. 10161 of 2012 is filed by Smt. Shanta D/o Murlidhar Kotkar, who was appointed in Respondent No.4 school on 3 rd August, 1993.
According to the petitioner, she is well qualified, having passed M.Sc. B.Ed. Degree. She came to be appointed 1 2007 AIR SCW 1321 ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 10 in regular pay scale on 14th June, 2000. In this Petition also, the impugned decision dated 8th November, 2012 passed by Respondent No.2 - Education Officer, Ahmednagar, which is the subject matter of Writ Petition no. 10484 of 2012, is under challenge on the same grounds, which are agitated in the said Writ Petition. The petitioner has also sought direction to appoint the petitioner on the post of trained graduate teacher by upgrading D.Ed. pay scale to the B.Ed. w.e.f.
1st June, 2008 i.e. from the date of retirement of one teacher Mr. A.M. Kale, who was serving in the Respondent - Institution.
The learned counsel appearing for the petitioner, in addition to arguments advanced by the learned counsel for the petitioner in Writ Petition No. 10484 of 2012, submits that, the petitioner filed various representations from 26th June, 2008 and thereafter also, however, request to appoint her on B.Ed. pay scale was not considered by the respondents.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::10484.12 WP+ 11 Therefore, relying upon the pleadings, grounds taken in the Petition and annexures thereto, the learned counsel appearing for the petitioner submits that, Petition deserves to be allowed.
6. Writ Petition No. 8286 of 2012 is filed by one Sunita W/o Yeshwant Panchmukh, wherein the directions are sought to Respondent Nos. 3 and 4 to forward the proposal of the petitioner for grant of trained graduate pay scale, and further to upgrade her posting as trained graduate pay scale from 31st May, 2012. The learned counsel appearing for the petitioner, in addition to submissions advanced by the learned counsel appearing for the petitioner in abovementioned two Writ Petitions, submits that, Respondent No.4 has issued letter dated 25th July, 2012, and has refused to grant B.Ed. pay scale to the petitioner on the ground that, only Mr. Parbhane, who was teaching a subject of Marathi, stood retired and hence on the said post, the person teaching Marathi subject deserves to be ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 12 appointed. According to the learned counsel appearing for the petitioner, the petitioner possesses qualification of M.A. (History), B.Ed. (History and Geography) and the petitioner came to be appointed on 26 th July, 1993.
The learned counsel also invited our attention to the grounds taken in the Petition and annexures thereto and submits that, the Petition deserves to be allowed.
7. Writ Petition No. 7523 of 2013 is filed by one Smt. Vaishali Digambar Choudhary, who is made party respondent, in earlier Writ Petition no. 10161/2012 and Writ Petition No.10484/2012. By way of filing this Petition, the petitioner has taken exception to the order dated 8th November, 2012 passed by Respondent No.2 awarding B.Ed. pay scale to Respondent No.5, who is petitioner in Writ Petition No.10484 of 2012, and has also sought declaration that, the appointment and consequent approval granted to Respondent No.5 be declared as null and void. The learned counsel appearing for the petitioner invited our attention to the ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 13 pleadings in the Petition, grounds taken therein and also affidavit in reply filed in aforementioned Writ Petitions and submits that, the appointment of the petitioner is in pursuant to the advertisement. She was appointed directly in the pay scale of trained graduate (B.Ed.) pay scale. It is further submitted that, the other petitioners, who have filed Writ Petitions, they cannot claim pay scale in the place of the petitioner, since their initial appointments were in D.Ed. pay scale. It is only in particular subject, if the teacher, who has been initially appointed in D.Ed. Pay scale, fulfills all conditions subject to prescribed quota of 25% for appointment as trained graduate teachers from D.Ed.
category, the Management can consider to give graduate pay scale as in service candidates. However, the Management is entitled to appoint B.Ed. trained graduate directly. Therefore, relying upon the pleadings in the Petition and annexures thereto, the learned counsel submits that, the Petition deserves to be allowed.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::10484.12 WP+ 14
8. The learned A.G.P. appearing for the Respondent No.2, relying upon the averments made in the affidavit in reply filed by the said respondent, submits that, the petitioner in Writ Petition No. 10484/2012 is working as assistant teacher in Respondent - school. The said school is an aided school having 5th to 10th classes. The said school is having sanctioned strength of 14 trained graduate teachers and 6 undergraduate teachers (D.Ed.). It is submitted that, for the academic year 2008-2009, Shri. A.M. Kale, who was trained graduate teacher (B.A., B.Ed.) retired on 31st May, 2008, and the said post of trained graduate teacher became vacant. The petitioner is having qualification of M.A., B.Ed. in English, but was working on D.Ed. pay scale since 13th June, 1993, as her appointment was on D.Ed. pay scale. There was need of two English teachers as per the workload, however, there was only one English teacher working.
Accordingly, the office of the Education Officer ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 15 (Secondary), Zilla Parishad, Ahmednagar, by order dated 19th July, 2012, had granted approval to the petitioner as trained graduate teacher w.e.f. 1 st June, 2008. However, the said order was challenged by Respondent No.5 i.e. Smt. Vaishali Digambar Chaudhary, by filing Writ Petition No. 9053/2011. The High Court disposed of the said Writ Petition and directed the Education Officer to hear all the concerned and take appropriate decision, and accordingly Education Officer conducted hearing on 15 th October, 2012. By impugned order dated 8th November, 2012, Respondent No.2 has taken decision directing the Management to submit the proposal of Smt.Vaishali Choudhary for grant of approval for regular B.Ed. Pay scale for the period from 15 th July, 2008 to 31st May, 2012, as the Management has not followed rule 9(1) as laid down in the M.E.P.S. Rules, 1981, while appointing her. Further direction was given to the Management to submit the proposal of the petitioner for grant of B.Ed.
Pay scale w.e.f. 1st June, 2012, as there is only one ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 16 vacant post for trained graduate from 1st June, 2008 to 31st May, 2012. The Education Officer took decision according to the availability of workload for Science, Mathematics and English subjects for 5 th to 10th standard, availability of posts and to do justice to both the teachers. Said Respondent No.2 has also filed affidavit in reply in Writ Petition No. 8286/2012. It is stated in the said affidavit in reply that, the petitioner claims that, she possesses qualification of M.A. History (B.Ed.) and came to be appointed as an assistant teacher with Respondent No.3 school by appointment order dated 26th July, 1993. She further claims that, though she holds M.A. B.Ed. qualification, she was appointed on D.Ed. Scale, as at the relevant time post of D.Ed. teacher was available. The petitioner claims that, she is teaching subject of History and Geography and also required to teach Marathi subject. She further claimed that, she should be given B.Ed. pay scale in place of retired teacher Parbhane, who was teaching Marathi subject. It is denied in the affidavit in reply ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 17 that, the petitioner was teaching students from 6 th to 10th classes. As per the information provided by Respondent No.3 - Headmaster, the petitioner is teaching students in 5th to 8th standard only. It is further stated that, Shri Parbhane, who retired on 31 st May, 2012 was teaching Marathi subject to the students from 8th to 10th classes. There is no extra workload for History and Geography subjects for 8 th to 10th classes and vacant post available in the trained graduate pay scale. In that view of the matter, the petitioner's request to give her trained graduate pay scale cannot be considered.
9. Mr. R.R. Karpe, the learned counsel appearing for Management, relying upon affidavit in reply and also additional affidavit in reply in Writ Petition No. 10484/2012 submits that, it is not in dispute that, the basic appointment of the petitioner is dated 13th June, 1993 and admittedly, at the relevant time, she was possessing D.Ed. Qualification and not ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 18 B.Ed. It is submitted that, two posts fallen vacant of B.Ed. Category and as per the procedure, the permission from Respondent No.2 was sought by Respondent Nos. 3 and 4. Vide communication dated 28th June, 2008 permission has been granted to fill up those two posts. Accordingly, the advertisement was issued. The applications were invited from the qualified candidates. Mandatory procedure, as laid down under rule 5(2) of the M.E.P.S. Rules was followed. The advertisement was given in news paper "Dainik Nagar Times". It is further submitted that, the said advertisement was for original post and not for promotional posts. The qualifications prescribed was B.Sc. B.Ed. (A group) i.e. Maths and Science and said post was advertised for the candidate from O.B.C.
Category and considering the qualifications/eligibility of Smt. Vaishali Chaudhari (B.Sc.), the appointment order was issued after following due procedure. She is directly appointed on B.Ed. Pay scale as per her qualification. The petitioner did not apply in pursuant ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 19 to the said advertisement and did not participate in selection process. There was no challenge to the advertisement dated 28th June, 2008, by the petitioners in various Petitions. It is submitted that, the qualification acquired by the petitioner i.e. M.A. B.Ed.
is also not requisite qualification subjectwise, as per the said advertisement dated 28th June, 2008, therefore, there is no question of depriving the petitioner from her legitimate claim, as contended by her. It is submitted that, the petitioner's appeal before the School Tribunal was unsuccessful, and therefore, on that ground also the Petition deserves to be rejected.
It is submitted that, initial appointment of the petitioner Sangita Banshiram Jajage was in D.Ed. Pay scale and the appointment of Respondent No.5 Vaishali Chaudhari was in B.Ed. Pay scale directly, and therefore, the petitioner cannot claim that, she was entitled to be appointed in B.Ed. Pay scale. It is further submitted that, appointment of Shri. M.D. Kotkar is not contrary to or superseding any other teacher since for ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 20 the said post at the relevant time, there was 80% grants, and therefore, other candidates were not ready to accept the appointment on the said post.
10. The learned counsel appearing for the Respondent Nos. 3 and 4 invited our attention to the averments in the affidavit in reply filed in Writ Petition No.8286/2012. The learned counsel further submitted that, petitioner Smt. Shanta Murlidhar Kotkar in Writ Petition no. 10161/2012 is concerned, she is having qualification as B.Sc. B.Ed. (B Group) and considering the same, her proposal for approval purpose has been forwarded with the Education Officer (Secondary), Zilla Parishad, Ahmednagar on 8th April, 2015, as Smt. P.H.
Nalte came to be retired from the services on 31 st March, 2015. Therefore, relying upon the averments in the affidavit/additional affidavit in reply, the learned counsel appearing for respondent Nos. 3 and 4 submits that, the Petitions deserve to be dismissed.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::10484.12 WP+ 21
11. We have carefully considered the submissions advanced by the learned counsel appearing for the parties. With their able assistance, we have perused the pleadings and grounds taken in the Petitions, annexures thereto, reply/additional in reply filed by the respective respondents, judgments cited across bar by the learned counsel appearing for the parties and the provisions of the Maharashtra Employees of Private Schools (Conditions of Services) Regulation Act, 1977 and Rules, 1981. Upon careful perusal of the provisions of Rule 9 of the M.E.P.S.
Rules, 1981, there is no specific provision, which supports the contention of the petitioners that, the respondent - management is obliged to appoint the candidates, who are appointed in D.Ed. Pay scale and consequently, acquired B.Ed. Qualification, as and when vacancy of trained graduate teachers arises in the school. The learned counsel appearing for the petitioners, have placed heavy reliance upon the instructions issued by the Director of Education, ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 22 Secondary and Higher Secondary, Maharashtra State, Pune, instructing the institutions to make subjectwise appointments of the teachers. The copy of the instructions issued by the Director of Education is placed on record at Exhibit `K' Page 73 of the compilation of the Writ Petition no.10484 of 2012. The contents of the said document reads thus :-
dzekad % vek'kk @41 2001 @6821 @ d ek/;- o mPp ek/;- f'k{k.k lapkyuky;] egkjk"Vª jkT; iq.ks&411 001-
fnukad % 27-7-2001 fo"k; %& fo"k;fugk; f'k{kd use.;kckcr-
lanHkZ %&'kklu dz-,l,l,u&[email protected]¼ [email protected] ½ ekf'k&2 fn-10-
7-2001 mijksDr lanHkkZf/ku 'kklu i=kUo;s 'kklukdMwu [kkyhy lwpuk izkIr >kY;k vkgs- lnj lwpukuqlkj dk;Zokgh dj.;kps rlsp f'k{kd use.kqdkauk ekU;rk ns.;kckcr vkiys Lrjko:u dk;Zokgh dj.;kps rlsp f'k{kd use.kqdkuka ekU;rk ns.;kckcr vkiys Lrjkao:u dk;Zokgh dj.;kckcr dGfo.;kr ;sr vkgsr- rjh [kkyhy lwpukuqlkj fu;qDR;k djkO;kr-
ek/;fed 'kkGkrhy b-5 oh rs 7 oh ojhy ,dw.k ekU; inkaP;k 25 VDds inkaoj b-5 oh rs 7 oh P;k oxkZoj v/;kiu dj.;kk&;k inoh/kj f'k{kdkl T;s"BrsP;k rRokus inoh/kj f'k{kdkph osruJs.kh ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 23 vuqKs; vkgs-
b-8 oh rs 10 oh ojhy inoh/kj f'k{kdkaph tkxk fjDr >kY;kl egkjk"Vª [kktxh 'kkGk deZpkjh ¼ lsosP;k 'krhZ ½ fu;ekoyh 1981 e/khy fu;e 9 izek.ks laLFkk ;ksX; R;k mesnokjkaph fu;qDrh d: 'kdrs- ek= v'kh fu;qDrh djrkuk 'kkGsyk T;k fo"k;kaph xjt vlsy R;kp fo"k;kkr inoh/kj vlysY;k f'k{kdkaph fuoM dj.ks vko';d vlrs- Eg.kwu b-5 rs 7 oh ojhy dk;Zjr inoh/kj izf'kf{kr f'k{kd b-8 oh rs 10 ojhy oxkZP;k fo"k;kph fudM iw.kZ djhr vlY;kl v'kk f'k{kdkapk fopkj laLFksyk b-8 oh 10 ojhy fjDr inkdfjrk djrk ;sbZy-
ojhy lwpuk loZ eq[;k/;kid] laLFkk ;kaps fun'kZukl vk.kkO;kr-
lgh @& f'k{k.k lapkydkdfjrk
12. The true translation of the said document is as under :-
No.AMASHA/41 2001/6821/K.
Directorate of Secondary & Higher Secondary Education, Maharashtra State, Pune-411 001.
Date: 27-07-2001.
Subject :- Regarding appointment of subject teacher.
Reference:- State No.SSN-1000/ (368/2001)Mah.Shik.-
2, dated 10-07-2001 As per the above referred Government letter following instructions have been received from the Government.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::10484.12 WP+ 24 As per the said instructions you are hereby informed to take action regarding grant of approval to the appointment of teachers at your level. Therefore, appointments should be made as per the following instructions.
In the Secondary school 25 % posts out of all sanctioned posts are admissible to receive pay scale of graduate teacher in accordance with the principle of seniority who teaches to standard 5th to 7th classes.
If the posts of graduate teacher teaching to the classes of 8th to 10th standard are fallen vacant on such posts appointment of any proper candidates can be made by the institution in accordance with the provisions made under rule 9 of the Maharashtra Employees of Private School (Conditions of Service ) Rules 1981. However, while making such appointment it is necessary for the school to appoint such graduate subject teacher on such post which is needed to the school for such subject. Therefore, if the trained graduate teacher who is teaching to the standard 5th to 7th if fulfills the criteria for standard 8th to 10th such teacher shall be considered by the institution for the vacant post meant for standard 8th to 10th.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::10484.12 WP+ 25 The aforesaid instructions should be brought into the notice of all Head Masters, Head of Institutions.
Sd/-
for Director of Education.
13. Upon careful perusal of the aforementioned document, it appears that, if the posts of graduate teacher, teaching 8th to 10th standard are fallen vacant, on such posts appointment of any proper candidates can be made by the institution in accordance with the provisions contained in rule 9 of the Maharashtra Employees Private School ( Conditions of Service) Regulation Rules, 1981. The said instructions further states that, however, while making such appointment, it is necessary for the school to appoint such graduate teacher subjectwise on such post, which is needed to the school for such subject.
Therefore, if the trained graduate teacher, who is teaching 5th to 7th standard, if fulfills the criteria for 8 th to 10th standard, such teacher shall be considered by the institution for the vacant post meant for 8 th to 10th ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 26 standard. It further appears from the perusal of the contents of the said document that, 25% teachers, who are teaching for 5th to 7th classes in Secondary school and who have acquired the graduate qualification i.e. B.Ed. as per their seniority, they will be entitled for the graduate pay scale, however, subject to vacancy of the trained graduate teacher in a particular subject.
14. It is also relevant to reproduce hereinbelow para 21 from the judgment of the Supreme Court in the case of State of Maharashtra and ors (supra) which reads thus :-
"21. 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 ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 27 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."
Therefore, it follows from the instructions issued by the Director of Education and also observations of the Supreme Court in para 21 in the case of State of Maharashtra (supra) that, the State Government intended to make provisions for trained graduate teachers to be upgraded to a higher scale to the extent of 25% of the posts. Therefore, when the vacancy arose on account of retirement of Shri Kale, who was teaching mathematics and science subject, the case of the petitioner in Writ Petition No.10161 of 2012 ought to have been considered by Respondent Nos. 2 to
4. ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 28
15. Upon careful perusal of the pleadings in Writ Petition No. 10484/2012, it appears that, the petitioner initially possessed qualification of S.S.C.
D.Ed., and therefore, was appointed in D.Ed. Pay scale.
Consequently, she acquired B.Ed. Qualification, however, in English and Marathi method. She claimed graduate pay scale in view of the vacancy arose on account of retirement of one Mr. A.M. Kale on attaining the age of superannuation. However, it appears that, Mr. A.M. Kale was teaching mathematics and science subjects, and therefore, since the petitioner being B.Ed.
in English and Marathi method, her claim in view of the aforementioned instructions could not have been considered. However, in the reply filed by the Education Officer, it is stated that, there was workload of two English teachers, but there was only one teacher, and accordingly by the impugned order, the Education officer has taken decision of giving B.Ed. Pay scale to the petitioner w.e.f. 1st June, 2012. Though we have ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 29 observed that, the petitioner being B.Ed. in English and Marathi was not eligible to be granted B.Ed. Pay scale in place of Mr. A.M. Kale, who was teaching mathematics and science subject, the Education Officer has considered the workload available for the English subject and granted B.Ed. Pay scale to the petitioner and we are not inclined to disturb the said decision of the Education Officer. So far appointment of Respondent No.5 - Vaishali Chaudhari is concerned, upon perusal of the material placed on record, it is abundantly clear that, the advertisement was issued and in pursuant to the advertisement, the applications were invited for the candidates, who possesses B.Ed.
Qualification and who are from O.B.C. Category. It is not disputed before us that, respondent No.5 - Vaishali Chaudhary, the petitioner in Writ Petition No.7523/2013 possesses B.Ed. Qualification and belongs to O.B.C. category. Upon perusal of the relevant Rules, the petitioners have not brought any relevant provisions, which create bar on the ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 30 Respondent-Management for issuing the advertisement for filling in the posts directly, from the trained graduate teachers, that too from reserved category.
Therefore, it appears that, the appointment of Smt. Vaishali Choudhary is from the O.B.C. Category, and therefore, we are not inclined to entertain the prayers of the petitioners to set aside the impugned order passed by the Education Officer granting approval to the services of Respondent No.5. Since Respondent Nos. 3 and 4 - Management did not consider the representations filed by the petitioners and in particular petitioner Smt. Shanta Kotkar in Writ Petition No.10161/2012, Respondent No.2 was justified in observing that, the Management shall pay the salary of Respondent No.5 - Vaishali Choudhary for the period from 15th July, 2008 to 31st July, 2012.
16. So far claim of the petitioner in Writ Petition No.10161/2012 is concerned, upon perusal of the material placed on record, it is abundantly clear that, ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 31 from June, 2008, the petitioner filed various representations to the respondents requesting to grant her trained graduate pay scale, however, those representations were not considered by the respondents. It appears from the material placed on record that, the petitioner possess M.Sc. B.Ed. Degree, and therefore, certainly she could have been considered for the trained graduate pay scale, when vacancy on account of attaining the age of superannuation by Mr. M.A. Kale occurred in respondent nos. 3 and 4.
However, the proposal of the petitioner for her appointment/granting trained graduate pay scale is already forwarded by Respondent Nos. 3 and 4 in the month of April, 2015 to Respondent No.2. In case, no decision has been taken by the Education Officer on the said proposal, we direct Respondent No.2 to take decision on the said proposal, keeping in view the fact that, the petitioner is M.Sc. B.Ed. and rendering the services from the year 1993 and one Mr.A.M. Kale is retired on attaining the age of superannuation, and ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 32 favourable proposal is forwarded by Respondent Nos. 3 and 4, as expeditiously as possible, however, preferably within four weeks from today. As already observed, the petitioner ought to have been considered by Respondent Nos. 4 and 5 for granting trained graduate pay scale due to vacancy arose on account of retirement of Mr. A.M. Kale, since the petitioner being M.Sc. B.Ed., certainly can teach in science subject. In that view of the matter and there was only one post of trained graduate teacher available at the relevant time and since Smt. Vaishali Choudhari is already appointed, though it is not possible to grant earlier monetary benefits to the petitioner Shanta Murlidhar Kotkar, the Respondent No.2 shall grant her trained graduate pay scale w.e.f. 1 st June, 2008, notionally, without actually paying monitory benefits for the period from 1st June, 2008 till the date on which actual proposal is submitted by Respondent Nos. 3 and 4 to respondent No.2 for granting her graduate pay scale.
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::10484.12 WP+ 33
17. In Writ Petition no.8286 of 2012, though the petitioner has prayed for direction to the Respondent nos. 3 and 4 to forward her proposal for grant of trained graduate pay scale and to upgrade her to the post of trained graduate pay scale from 31st May, 2012, upon perusal of the affidavit in reply filed by the Respondents, it appears that, there is no vacant post of the trained graduate teacher in history and geography subject. Since there is no vacancy, we cannot give mandatory directions to the Respondents, however, we make it clear that, as and when, workload of the aforementioned two subjects would be available/ vacancy of trained graduate teacher in the said subjects would arise in future, no other candidate should be appointed except the petitioner on the said post subject to approval by the Education Officer.
18. So far prayers made in Writ Petition No.7523/2013 filed by Smt. Vaishali Digambar Choudhary is concerned, she is appointed in the year ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 34 2008 by separate selection process, cannot take exception to the appointment of Smt. Sangita Banshiram Jajage, who came to be appointed in the year 1993, and about the said selection process, Smt. Vaishali Digambar Choudhary, is no way concerned and secondly, the appointment of Smt. Sangita Banshiram Jajage, in the year 1993 cannot be questioned after 20 years. Though the petitioner has prayed for setting aside the impugned order dated 08.11.2012 passed by Respondent No.2 to the extent of awarding B.Ed. Pay scale to Sangita Banshiram Jajage, we are not inclined to entertain the said prayer since Respondent No.2, taking into consideration the workload available for the English subject in Respondent No.3 - school has decided to grant trained graduate pay scale. Therefore, the said prayers in the said Petition deserve no consideration.
19. In the light of the discussion in the foregoing paragraphs, Writ Petition no.10484 of 2012 and Writ ::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 ::: 10484.12 WP+ 35 Petition No.7523 of 2013 stand rejected. Writ Petition No. 10161 of 2012 and Writ Petition No.8286 of 2012 are partly allowed to the extent of observations made in the foregoing paragraphs.
20. Rule accordingly made absolute in above terms.
Sd/- Sd/-
( A.M.BADAR, J. ) ( S.S. SHINDE, J. )
SGA/-
::: Uploaded on - 19/11/2015 ::: Downloaded on - 19/11/2015 23:58:54 :::