Dnyaneshwar Dattatraya Naladkar vs The State Of Maharashtra And ...
2016 Latest Caselaw 6960 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                    
                      BENCH AT AURANGABAD




                                            
                      WRIT PETITION NO.4278 OF 2016

    Dnyaneshwar s/o. Dattatraya 
    Naladkar, Age : 56 years,
    Occu. Service as Assistant Teacher,




                                           
    r/o. C/o. Shri Jemla Naik Primary
    Ashram School, at Saknur Tanda,
    Post Barhali, Tq. Mukhed,
    Dist. Nanded                        ..Petitioner




                                   
                  Vs.
                              
    1. The State of Maharashtra,
       Through its Secretary,
       Social Welfare Department,
                             
       Mantralaya, Mumbai - 32

    2. The Regional Deputy Commissioner,
       Social Welfare, Latur Division,
      

       Latur
   



    3. The Assistant Commissioner,
       Social Welfare Department,
       Nanded 





    4. Shri Jemla Naik Primary Ashram
       School, Saknur Tanda, 
       Post Barhali, Tq. Mukhed,
       Dist. Nanded
       Through its Head Master          ..Respondents 





     
                             --
    Mr.A.V.Patil (Indrale), Advocate for petitioners

    Mr.A.A.Jagatkar AGP for respondent nos.1 to 3
                             --




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                                    CORAM :  R.M. BORDE AND




                                                                           
                                             SANGITRAO S. PATIL, JJ. 

DATE : DECEMBER 06, 2016

ORAL JUDGMENT :

Heard.

2. Rule. Rule made returnable forthwith.

With consent of the parties, the petition is taken

up for final hearing at admission stage.

3.

By this petition, the petitioner is

questioning legality and validity of the

communication dated 27.06.2013 issued by the

Assistant Commissioner, Social Welfare, Nanded

rejecting the proposal of the petitioner for grant

of time bound higher pay scale upon completion of

twelve years continuous service as trained

Graduate Teacher.

4. The petitioner contends that he possesses

qualification of M.Com, B.Ed. and was appointed as

trained Graduate Teacher on 22.06.1998. Initially,

he was put on probation for two years in the pay

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scale of Rs.1400-2600. On completion of probation

period, the services of petitioner have been

confirmed and the petitioner has been granted

revision of the pay scale of Rs.5500-9000 of the

post of trained Graduate Teacher. It is contended

that in the year 2004, the petitioner has also

acquired D.Ed. qualification. The petitioner

contends that he is discharging functions of

trained Graduate Teacher from the date of

appointment i.e. 22.06.1998. He has completed

twelve years service in the year 2010 and as such,

as per the policy prescribed by the Government, he

is entitled to claim benefits of the higher pay

scale.

5. The request made by the petitioner has

been turned down by the Assistant Commissioner,

Social Welfare, Nanded on the ground that the

petitioner has not completed continuous service as

a trained Graduate Teacher for a period twelve

years.

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6. The Reasons recorded for turning down the

proposal appears to be erroneous on the face of

record. On perusal of the staff approval order

dated 21.06.1999, it appears that there was

vacancy of a trained Graduate Teacher in the year

1999 and that the petitioner has been appointed as

against the said vacancy. The order of approval

accorded by the Special District Social Welfare

Officer, Nanded on 29.10.2002 records the pay

scale admissible to the petitioner as Rs.5500-9000

i.e. the pay scale prescribed for a trained

Graduate Teacher. The petitioner is drawing the

pay scale prescribed for a trained Graduate

Teacher from the date of his appointment.

Therefore, there shall be no controversy as

regards the acquisition of qualification by the

petitioner since he holds the degrees of Master in

Commerce and Bachelor of Education on the date of

appointment.

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7. As per the policy prescribed by the State

Government, 25% posts out of the total available

posts can be permitted to be filled in from

amongst the trained Graduate Teachers. The

petitioner claims that he fulfills the condition

of qualification for being treated as a trained

Graduate Teacher and hence, he is entitled to be

included in 25% posts which carry the pay scale of

trained Graduate Teacher.

8. Our attention is invited to the judgment

in the case of State of Maharashtra and ors. Vs.

Tukaram Trymbak Chaudhari and ors., 2007(2)

All.M.R.(SC)933. In paragraph 17 of the judgment,

the Supreme Court has observed thus :-

"17. We have carefully considered the submissions made on behalf of the

respective parties. Having particular regard to the fact that though standards 5 to 7 were attached to both primary schools as well as secondary schools, these classes in

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fact, represented the middle schools

for which different standards were being followed. 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

obtained a degree in Arts or Science and had also obtained a degree in education namely, B.Ed. While adopting the aforesaid Resolution,

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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."

The policy formulated by the State Government of

earmarking 25% for trained Graduate Teachers in

the schools imparting education from 5th to 7th

standards has been upheld by the Supreme Court.

9. In view of the reasons recorded above, we

are of the considered opinion that respondent no.3

- Assistant Commissioner, Social Welfare

Department, Nanded has committed error while

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issuing the impugned communication turning down

the proposal tendered by the Institution seeking

approval for grant of higher pay scale in favour

of the petitioner. The impugned communication

appears to have been passed without consideration

of record of the case and as such, deserves to be

quashed and set aside and the same is accordingly,

quashed and aside. The proposal submitted by the

Institution for approval for granting higher pay

scale to the petitioner on completion of twelve

years of service, shall be deemed to have been

granted. The monetary benefits accruable to the

petitioner shall be released within a period of

four months from today.

10. Rule made absolute accordingly. There

shall be no order as to costs.

             Sd/-                                   Sd/-
    [SANGITRAO S. PATIL, J.]                  [R.M. BORDE, J.]

    kbp