Bombay High Court
Shamrao Gyanbarao Bagate vs The State Of Maharashtra And ... on 21 September, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.904 OF 2015
Shamrao s/o. Gyanbarao Bagate,
Age: 49 Years, Occu: Service,
R/o. Jayprakash Nagar, Nanded. PETITIONER
VERSUS
1] The State of Maharashtra
[Through its Secretary,
School Education & Sports
Department, Mantralaya,
Mumbai-32]
2] The Zilla Parishad,
Nanded
Through its Education Officer [Primary]
RESPONDENTS
...
Mr. V.A.Dhakne, Advocate for the Petitioner
Mr. S.B.Pulkundwar, AGP for the Respondent No.1
Ms. Preeti Diggikar, Advocate for the Respondent No.2.
...
CORAM: S.S.SHINDE &
A.M.BADAR, JJ.
Reserved on : 01.09.2015
Pronounced on: 21.09.2015
JUDGMENT: [Per S.S.Shinde, J.]:
1] Heard.
2] Rule. Rule made returnable forthwith, and
heard finally with the consent of the parties.
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3] This Petition is filed with following prayers:
B] To direct the respondent no.2 to grant the pay
scale of Trained Graduate Primary Teacher to
the petitioner from the date of his initial
appointment and to pay the arrears of salary
admissible to a trained graduate primary
teacher to the petitioner from the date of his
initial appointment, by issuing a writ of
mandamus or any other appropriate writ, order
or direction as the case may be.
C] To quash and set aside the impugned order /
letter dated 11.11.2014 issued by the
Education Officer [Primary], Zilla Parishad,
Nanded cancelling its earlier order dated
27.08.2014, by issuing a writ of Certiorari or
any other appropriate writ, order or direction as
the case may be.
The relevant facts as disclosed in the
Petition are as under:
4] The petitioner is working as Graduate Primary
Teacher in Swami Ramanand Tirth Primary School, Nava
Mondha, Nanded with effect from 16.06.1993. The
petitioner possesses B.A., B.Ed. and D.Ed. qualifications.
After following due procedure, on 16.06.1993, the petitioner
was appointed as an Assistant Teacher in the pay scale of
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graduate primary teacher, as he was having B.A.,B.Ed.
qualification. Accordingly, for first three years on
02.11.1993, the respondent No.2 had accorded approval to
the appointment of the petitioner as graduate primary
teacher. However, thereafter, without giving any notice to
the petitioner, on 31.03.2003, the respondent No.2 had
granted approval to the services of the petitioner as
untrained teacher for the period from 01.05.1996 to
03.07.2003 on the ground that, he was not having D.Ed.
qualification. The petitioner had completed postal D.Ed.
course, while he is in service on 04.07.2003, and thereafter,
with effect from 04.07.2003, his services had been
approved as trained primary teacher in D.Ed. scale by the
respondent No.2.
5] The Government has issued a Resolution on
11.11.2011, adopting a policy that, the graduate teachers
appointed in primary school, who possesses B.Ed.
qualification, are entitled to be treated as trained teachers
in B.Ed. scale from the date of initial appointment, if their
appointments are within 25% quota. Therefore, on
20.08.2013, the Head Master had forwarded the proposal of
the petitioner for granting the pay scale of graduate
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primary teacher since his appointment. However, the
respondent No.2 has granted the said pay scale to the
petitioner with effect from 01.08.2007, instead of granting
the same from the date of his initial appointment.
Therefore, on 27.08.2014, the Head Master has again
forwarded the requisition to the respondent No.2, for
granting the pay scale of graduate primary teacher to the
petitioner since his initial appointment, and thereafter, the
respondent No.2 had granted the pay scale of graduate
primary teacher to the petitioner from the date of initial
appointment, in view of the Government Resolution dated
11.11.2011. However, without giving any notice to the
petitioner and without any reason to cancel its earlier order,
the respondent No.2 has issued the impugned order on
11.11.2014 cancelling its order dated 27.08.2014 granting
the pay scale of graduate primary teacher to the petitioner,
since his initial appointment on the ground that, the same
was issued inadvertently. Hence this Writ Petition.
6] The learned counsel appearing for the
petitioner submits that, the petitioner's case is covered by
the Judgment of the Hon'ble Supreme Court in the case of
State of Maharashtra & others Vs. Tukaram Trimbak
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Chaudhari & others1, and also the Government
Resolution dated 11.11.2011 issued by the School
Education and Sports Department, Mantralaya, Mumbai. It
is submitted that, in view of the Government Resolution
dated 11.11.2011, the graduate teachers appointed in
primary school, who possesses B.Ed. qualification, are
entitled to be treated as trained teachers in B.Ed. scale
from the date of initial appointment, if their appointments
are within 25%, and the very appointment of the petitioner
is within 25% quota provided for graduate teachers, and he
is the only person, who is a graduate teacher in the school.
7] On the other hand, the learned counsel
appearing for the respondent No.2 invited our attention to
the averments in the affidavit-in-reply. It is submitted that,
the appointment of the petitioner is not from 25% quota
provided for graduate teachers. From the said 25% quota,
one Shri D.M.Salunke is appointed, and therefore, the
petitioner cannot claim the benefits of the Government
Resolution dated 11.11.2011. It is submitted that, the
petitioner was appointed as an Assistant Teacher on the
basis of B.A. B.Ed. qualification with Swami Ramanand Tirth
Primary School, Nanded run by Kai. Gayabai Shikshan
1 2007 AIR SCW 1321
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Sanstha, Ekdara, Nanded with effect from 16.06.1993.
During his service tenure, the petitioner has completed his
D.Ed. course on 04.07.2003, and therefore, he became the
trained graduate teacher on 04.07.2003, in view of the
provisions of Rule 2 (k) of the Maharashtra Private Schools
Employees [Service Conditions] Rules, 1981. For the said
school, the permission is only for 1st Standard to 7th
Standard.
ig It is submitted that, as per the Government
Resolution dated 14.11.1979, if there are 5th to 7th
Standard, there are 4 posts sanctioned, and out of the said
4 posts, one post comes within 25% quota provided for
graduate teachers. It is submitted that, in view of the
Government Resolution dated 28th April, 1989, the school of
the petitioner was sanctioned 25% of the salary aid, and
thereafter, 100% aid was sanctioned from June, 1994. As
the petitioner did not possess the D.Ed. qualification, the
answering respondent has accorded individual approval
orders from 1st May, 1996. Thereafter, the petitioner has
passed the D.Ed. qualification on 04.07.2003, as such, the
answering respondent has made applicable the trained
graduate teachers scale to the services of the petitioner
with effect from 30.04.2004.
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8] It is further submitted that, on 1st October,
2000, the Head Master of the School has submitted the
proposal of one Shri D.M.Salunke for trained graduate
teacher's pay scale, as he was possessing the B.Sc. D.Ed.
qualification. Accordingly, graduate teacher's pay scale
was granted to Shri D.M.Salunke with effect from
01.08.2000, vide letter dated 2nd December, 2008, subject
to the completing B.Ed. course within 5 years. However,
Shri D.M.Salunke did not complete B.Ed. course within 5
years, and therefore, vide letter dated 30th June, 2005, his
graduate teachers pay scale was stayed. For completing
B.Ed. course time was extended up to 7 years, however, he
could not complete the B.Ed. course. Therefore, as the
petitioner was eligible for the said benefit, the answering
respondent has given the said benefit to the petitioner from
1st August, 2007. It is submitted that, the petitioner has
sought trained graduate pay scale from the date of his
initial appointment i.e. from 16th June, 1993, however, for
the said primary school where the petitioner is serving,
there is only one post is permissible from 25% quota
provided for graduate teachers. The said benefit is already
given to Shri D.M.Salunke by the answering respondent and
in view of the Government Resolution, the answering
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respondent can give the said benefit to only one employee
in view of the teacher's strength of the school. It is
submitted that, as the answering respondent has already
given the pay scale of trained graduate teacher to Shri
Salunke from 1st August, 2000 to 31st July, 2007, the said
benefit cannot be given to the present petitioner at this
stage, as he is not appointed from 25% quota provided for
trained graduate teachers. It is submitted that, upon
request of the petitioner, the Head Master of the School has
submitted the application on 1st April, 2014 for review of the
pay scale of graduate teachers. After verifying the same,
the answering respondent vide letter dated 27th August,
2014, has inadvertently sanctioned the graduate pay scale
with effect from 16th June, 1993 to 31st July, 2007, though
the petitioner did not complete the D.Ed. course at the
relevant time. When the said fact came to the notice to the
answering respondent, the answering respondent vide
letter dated 11th November, 2014 has cancelled the said
order dated 28th August, 2014, thereby granting the trained
graduate pay scale to the petitioner with effect from 16th
June, 1993 to 31st July, 2007. At the cost of repetition, the
learned counsel appearing for the respondent No.2 submits
that, Shri Salunke was appointed from 25% quota provided
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for graduate teacher. On his failure to complete B.Ed.
course within 7 years, the answering respondent has stayed
further pay scale of the said Salunke, and the same was
given to the petitioner with effect from 1st August, 2007,
and therefore, the petitioner is not entitled for the graduate
teacher pay scale from 16th June, 1993 to 31st July, 2007.
Therefore, the learned counsel appearing for the
respondent No.2 submits that, Petition may be rejected.
9] The learned AGP appearing for the Respondent
- State, adopted arguments advanced by the learned
counsel appearing for the respondent No.2, and prayed for
rejection of the Writ Petition.
10] We have given careful consideration to the
submissions of the learned counsel appearing for the
petitioner, learned AGP appearing for Respondent - State,
and the learned counsel appearing for the Respondent
No.2. With their able assistance, we have carefully perused
the pleadings in the Petition, annexures thereto and the
affidavit-in-reply filed by the respondent No.2. Upon
perusal of the documents placed on record, it appears that,
the petitioner was appointed on 16th June, 1993. At the
relevant time, he was possessing B.A. B.Ed. qualification.
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However, since at the relevant he was not possessing D.Ed.
qualification and he acquired the said qualification on 31st
March, 2003, his service with effect from 4th July, 2003 had
been approved as trained primary teacher in D.Ed. scale by
the respondent No.2. It appears from the affidavit-in-reply
filed by the respondent No.2 that, Shri D.M.Salunke was
appointed within 25% quota provided for the graduate
teachers.
However, he could not complete B.Ed. course
within stipulated period, therefore, the petitioner is given
appointment from 25% quota as provided under
Government Resolution dated 11st November, 2011. It is
true that, the said Government Resolution provides for 25%
quota for the teachers, who are teaching in primary school,
and who possesses B.A. and B.Sc. B.Ed., and do not possess
D.Ed. qualification, and if such employee is already
appointed from the date of his appointment, he should be
treated as trained teacher, and accordingly, he / she should
be paid pay scale meant for trained graduate teacher i.e.
B.Ed. The relevant clause-A, for the purpose of deciding
present Writ Petition, in the Government Resolution dated
11th November, 2011 issued by the School Education and
Sports Department, Mantralaya, Mumbai, reads thus:
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v½ izkFkfed 'kkGsrhy inoh/kj f'k{kdkaP;k ¼25%½ inkoj ch-,-
@ch-,Lk-lh- o ch-,M- vxksnj vgZrk /kkj.k d:u ¼Mh-,M- gh
vgZrk ul.kkjs ½;k inkoj f'k{kdkP;k fu;qDR;k dsY;k vlY;kl
v'kk f'k{kdkauk fu;qDrhP;k fnukadkiklwu izf'kf{kr f'k{kd Eg.kwu
let.;kr ;kos- R;kauk inoh/kj izf'kf{krkaph ¼ch-,M-½ osruJs.kh
ns.;kr ;koh-
Upon careful perusal of the afore-mentioned
provisions in the Government Resolution, it is abundantly
clear that, if the teacher possessing B.A. and B.Sc. B.Ed., if
appointed from 25% quota available to the trained
graduate teacher, serving in Primary School, he should be
treated as trained teacher from the date of his
appointment, and accordingly, he should be given pay scale
of the trained teacher. In the present case, the petitioner
was already appointed as an Assistant Teacher on
16.06.1993 in the pay scale of graduate primary teacher, as
he was having B.A. B.Ed. qualification, is entitled for the
benefit provided under afore-mentioned Government
Resolution. However, it appears that, Shri D.M.Salunke was
appointed from 25% quota provided for trained graduate
teacher in the school of the petitioner. However, he could
not complete B.Ed. course within stipulated period, his pay
scale was withdrawn, and the petitioner being eligible to be
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appointed from 25%, is given benefit of the afore
mentioned Government Resolution, however, w.e.f. 1st
August, 2007.
11] Upon careful perusal of the afore-mentioned
clause-A of the said Government Resolution, it is
abundantly clear that, the benefit extended by the said
Government Resolution is with effect from the date of
appointment, in case the teacher is appointed to teach in a
primary school and possesses B.A. & B.Sc. B.Ed.
qualification. Therefore, we have no hesitation to hold that,
the petitioner should be treated as trained graduate
teacher with effect from his appointment, and also entitled
for the pay scale meant for trained graduate category.
Therefore, the petitioner is entitled for the benefit of the
said post with effect from his date of appointment.
However, so far monetary benefits for the period from 1st
August, 2000 to 31st July, 2007 is concerned, those are
required to be given notional, and not actual monetary
benefits, since for the said period Shri D.M.Salunke was
appointed and as a matter of fact, he has availed monetary
benefits available to the graduate teachers.
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12] In the light of the discussion in the foregoing
paragraphs, we are of the considered view that, the
petitioner should be treated as trained graduate teacher
with effect from his appointment and entitled for the pay
scale meant for trained graduate teachers [B.A.] category.
However, excluding monetary benefits, which are already
drawn by Shri D.M.Salunke with effect from 1st August, 2000
to 31st July, 2007. However, for all other purposes, the
petitioner should be treated as trained graduate teacher in
relevant pay scale with effect from his date of appointment
including continuity in service and all other benefits
available.
13] The Petition is partly allowed. Rule made
absolute on above terms. Petition stands disposed of.
Sd/- Sd/-
[A.M.BADAR] [S.S.SHINDE]
JUDGE JUDGE
DDC
