Gajanan S/O Bhagwan Dharpure vs The State Of Maharashtra & Ors
2016 Latest Caselaw 6144 Bom

                                                           1                        wp5150.05

                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                         
                                       NAGPUR BENCH : NAGPUR




                                                                 
                               WRIT PETITION NO.5150 OF  2005


    Shri Gajanan s/o Bhagwan Dharpure,




                                                                
    aged about 57 years, 
    r/o Ashti, District Wardha.                                ...            Petitioner 

                      - Versus -




                                                          
    1)      The State of Maharashtra, through
            its Secretary, Education Department, 
                                   
            Mantralaya, Mumbai. 

    2)      The Deputy Director of Education,
                                  
            Nagpur Division, Nagpur. 

    3)      The Education Officer (Secondary),
            Zilla Parishad, Wardha. 
      

    4)      Rashtriya Educational and Cultural
            Society, Ashti, Wardha, through 
   



            its President. 

    5)      Jawahar Urdu High School,
            Ashti, District Wardha, through its





            Head Master.                                       ...            Respondents
                                       -----------------
    Shri     R.   Vaidya,   Advocate   h/f   Shri   Anand   Parchure,   Advocate   for   the
    petitioner. 





    Shri A.S. Fulzele, Additional Government Pleader for the respondent nos.1
    to 3. 
                                       ----------------

                                              CORAM :   SMT. VASANTI A  NAIK AND 
                                                        KUM. INDIRA JAIN, JJ.

DATED : OCTOBER 18, 2016

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ORAL JUDGMENT (PER SMT. VASANTI A NAIK , J.) :

By this writ petition, the petitioner challenges the order of the

respondent no.3 Education Officer, dated 2/7/2003 granting pay scale to

the petitioner in the 25% graduate quota with effect from 25/4/2003 and

not from 1/5/1989.

The petitioner was appointed as a part time Marathi Teacher

on a permanent post on 1/10/1974 and was appointed as a permanent

full time Teacher in Marathi on 20/6/1979. The petitioner acquired B.Ed.

qualification in the year 1988 and sought higher pay scale in the 25%

graduate quota. The respondents refused to grant higher pay scale to the

petitioner from the year 1989 and, therefore, the petitioner filed Writ

Petition No.2367/1989, that was decided by this Court by the judgment

dated 13/3/2005. This Court directed the respondent - Management to

take a decision for granting higher pay scale to the petitioner within six

weeks. During the pendency of the writ petition, the School Committee

had passed a resolution dated 18/1/2003 that the petitioner should be

granted higher pay scale in the 25% graduate quota with effect from

1/5/1989. Despite the resolution of the School Committee, the Education

Officer granted higher pay scale to the petitioner in the 25% graduate

quota with effect from 25/4/2003, by the impugned order dated

2/7/2003. The petitioner has challenged the said order in the instant

petition as the petitioner seeks the pay scale from 1/5/1989.

Shri Vaidya, the learned Counsel for the petitioner, submits

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that the Education Officer was not justified in granting the higher pay

scale in the 25% graduate quota to the petitioner from 25/4/2003. It is

submitted that since the year 1988-89, the petitioner was consistently

making representations to the Management and to the Education Officer

for granting promotional pay scale in the 25% graduate quota to him. It is

stated that since the pay scale of the petitioner was reduced illegally and

he was not granted higher pay scale in the 25% graduate quota, the

petitioner had filed Writ Petition No. 2367/1989. It is stated that though

the School Committee had passed a resolution, dated 18/1/2003 that the

petitioner should be granted promotional pay scale in the 25% graduate

quota from 1/5/1989, the Education Officer has wrongly granted the said

pay scale to the petitioner from 25/4/2003. It is stated that as the writ

petition was pending since 1989, the School Committee might not have

passed the resolution earlier.

Shri Fulzele, the learned Additional Government Pleader

appearing for the respondent nos.1 to 3, has supported the order of the

Education Officer. It is admitted that the petitioner had acquired the

B.Ed. qualification in the year 1988 and he was eligible for the higher pay

scale in the 25% graduate quota since 1/5/1989. It is also admitted that

at the relevant time in the year 1989, there was a vacancy in the 25%

graduate quota and the petitioner could have been absorbed in the same.

It is, however, submitted that the petitioner was not entitled to the

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promotional pay scale in the 25% graduate quota with effect from

1/5/1989 as no such resolution was passed by the School Committee till

18/1/2003. It is stated that only after the resolution of the School

Committee was conveyed to the Education Officer in the year 2003, the

Education Officer rightly granted the promotional pay scale in the 25%

graduate quota to the petitioner with effect from 25/4/2003. The learned

Additional Government Pleader has sought for the dismissal of the writ

petition.

On hearing the learned Counsel for the parties, we find that

the petitioner would be partly entitled to the relief claimed. Admittedly,

the petitioner had secured B.Ed. qualification in the year 1988 and was

eligible for the promotional pay scale in the 25% graduate quota with

effect from 1/5/1989 in view of the vacancy in the 25% graduate quota

during the relevant time. Since the petitioner's claim was not considered

favourably by any of the respondents, the petitioner had filed Writ Petition

No. 2367/1989. The said writ petition was disposed of on 13/3/2005,

however, before the disposal of the said writ petition, on 18/1/2003, the

School Committee had passed a resolution that the petitioner should be

granted promotional pay scale in the 25% graduate quota with effect from

1/5/1989. The said resolution was conveyed to the Education Officer by

the respondent Management along with a proposal, in that regard. The

Education Officer, however, granted the promotional pay scale to the

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petitioner with effect from 25/4/2003. We do not find that there was any

propriety in the action on the part of the Education Officer in granting the

promotional pay scale to the petitioner with effect from 25/4/2003 when

the School Committee had resolved that the petitioner was entitled to the

promotional pay scale with effect from 1/5/1989. Also, it was necessary

for the Education Office to grant the promotional pay scale to the

petitioner with effect from 1/5/1989, more so when the petition filed by

the petitioner in 1989 was pending and the claim of the petitioner for

seeking the promotional pay scale was subsisting since then. The

petitioner was not only eligible for the promotional pay scale in the 25%

graduate quota from 1/5/1989, but there was also a vacancy in the said

quota on 1/5/1989. The Administrator on the School run by the

respondent Management had also passed an order on 6/5/1989 that the

petitioner would be entitled to the promotional pay scale with effect from

1/5/1989.

In the facts and circumstances of the case, the Education

Officer should have granted the promotional pay scale to the petitioner

with effect from 1/5/1989 and not from 25/4/2003. Though we are

inclined to grant the prayer made by the petitioner in this regard, we are

not inclined to direct the respondents to pay the arrears of difference in

salary to the petitioner by granting the promotional pay scale to him in the

25% graduate quota with effect from 1/5/1989. Though the petitioner

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would not be entitled to the actual monetary benefit, i.e. arrears of

difference in salary for the period from 1/5/1989 till 25/4/2003, he

would be entitled to the consequential benefits that would flow from the

order of the grant of the promotional pay scale to the petitioner in the

25% graduate quota with effect from 1/5/1989.

Hence, for the reasons aforesaid, the writ petition is partly

allowed. The impugned order dated 2/7/2003 stands modified. The

petitioner would be entitled for the promotional pay scale in the 25%

graduate quota with effect from 1/5/1989. Though the petitioner would

not be entitled to the monetary benefit, i.e. difference of arrears of salary

with effect from 1/5/1989, he would be entitled to the consequential

benefits flowing from this order. It is needless to mention that the retiral

benefits including pension and other consequential benefits should be paid

to the petitioner by considering that the promotional pay scale in the 25%

graduate quota is granted to him with effect from 1/5/1989.

Rule is made absolute in the aforesaid terms with no order as

to costs.

                       JUDGE                                                         JUDGE




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