Bombay High Court
Shanta Murlidhar Kotkar vs The State Of Mah And Ors on 16 November, 2015
Bench: S.S. Shinde
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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.
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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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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(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
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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
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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
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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
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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
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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.
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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,
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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
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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-
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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.
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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.
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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
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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
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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.
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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
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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
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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,
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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
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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.
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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
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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
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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/-
