Saroj Rasilal Dave vs State Of Maharashtra & Ors
2017 Latest Caselaw 3199 Bom

                                                                               wp 6404.03.doc

Urmila Ingale

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
                                      WRIT PETITION NO. 6404 OF 2003

                 Mrs.Saroj Rasilal Dave
                 Age : 42 yrs.
                 12/24, Anand Park Society,
                 Gultekdi,
                 Pune 411 037.                                 .. Petitioner

                          Vs.

                     1.   State of Maharashtra

                     2.Deputy Director of Education
                 Pune Region
                 17 Dr. Ambedkar Road
                 Pune 411 001.

                      Poona Gujrathi Kelwani Mandal's
                     3.
                 Acharya Shri D.B. Dadawala
                 Junior College,
                 (Through the Principal)
                 1433 Kasba Peth, Pune 411 011.

                      Secretary,
                     4.
                 Poona Gujrathi Kelwani Mandal
                 1433 Kasba Peth,
                 Pune - 411 011.                             .. Respondents

                 Mr. P. J.Thorat, for the Petitioner.
                 Mrs.K.R.Kulkarni, AGP  for Respondents No.1 & 2.
                 Mr.Akhileshwar   Sharma   i/b   Ashwin   Ankhad   &   Associates,   for 
                 Respondents No.3 & 4.
                 Respondent No.2 i.e. Dy. Director of Education, Pune Region in-
                 person present.

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                                CORAM :  A.A.SAYED &
                                               M.S.KARNIK, JJ.

                         RESERVED ON : 07th JUNE, 2017
                  PRONOUNCED ON : 15th JUNE, 2017


  JUDGMENT  (PER  M.S.KARNIK, J)

:

1. The petitioner acquired a post graduation degree of

Master of Arts in the year 1994. She acquired a degree of

Bachelor of Education in the year 1999. Ever since 13/07/1999

she is in the employment of third respondent - Acharya Shri D.B.

Dadawala Junior College as a teacher.

2. It is the case of the petitioner that the third

respondent is a junior college established by a Public Charitable

Trust called 'Poona Gujrathi Kelwani Mandal' i.e. fourth

respondent in this Petition. Respondent No.4 also runs a

secondary school by name 'Ratanben Chunilal Mehta Gujarathi

High School' to which the aforesaid junior college is attached.

The junior college and the secondary school run by the said

Trust are fully aided and receive 100% grant from the State of

Maharashtra except for one division of XIth standard and one

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division of XIIth standard.

3. The petitioner was initially appointed as an assistant

teacher by an appointment order dated 03/07/1999 in the scale

of Rs.4500-125-7000/- by the said secondary school run by

respondent No.4 - Trust. The appointment was on probation of

2 years in clear vacancy. 10 days after the said appointment,

she was issued another order of appointment on 13/07/1999 by

respondent No.3 - junior college appointing her as an assistant

teacher on temporary basis on the pay scale of Rs.1200-2040/-.

According to the petitioner, she received 2 independent

appointments for 2 independent posts in 2 independent

institutions. The secondary school and junior college are

administered separately although run by the same Charitable

Trust and although the Principal happens to be common. The

petitioner started teaching in both the institutions and according

to her, she was predominantly appointed for the junior college.

For the period from July 1999 till June 2000, the petitioner was

assigned lectures for 11.20 hours per week for junior college. As

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against this, she was assigned only 7 hours per week for the

secondary school during the said period. The Deputy Director of

Education, however, had granted approval to the appointment of

the petitioner as an assistant teacher in the secondary school in

the scale of Rs.4500-125-7000/- and had purportedly granted

approval to her appointment in the junior college as if it was

only an additional assignment when the approval should have

been vice a-versa. This according to the petitioner is based on

some erroneous information supplied by the junior college. The

appointment letter dated 13/07/1999 issued by the junior

college provided only teaching allowance of Rs.125/- to the

petitioner in consideration of her teaching assignment in the

junior college instead of regular scale applicable to an assistant

teacher of junior college i.e. Rs.7225 - 225 - 11025/- (the

order of approval of teacher working on a full time basis

mentions the scale as Rs.7225-11050/-) and an allowance for

additional charge of junior college.

4. The Principal of the respondent No.3 - college by

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letter dated 27/09/2000 to the Deputy Director of Education,

Pune Region brought to the notice the said anomaly. In the said

letter dated 27/09/2000, it is stated that the petitioner was M.A.

B.Ed and was appointed for XIth and XIIth standard for 17

lectures i.e. workload of 11 hours and 20 minutes. The said

letter also records the fact that the petitioner's assignment in the

secondary school was only of 7 hours workload and the same

was in addition to the aforesaid appointment in the junior

college. The request was thus made that the petitioner be given

appointment in the junior college as a full time teacher for the

year 1999-2000 and consecutive years.

5. According to the petitioner, even in the next year i.e

July 2000 to June 2001 she predominantly worked for junior

college and only additionally for secondary school. The

petitioner taught for 14 hours per week in junior college and for

6 hours per week in the secondary school. She, however, was

not given the pay as per the pay scale applicable to the post of

teacher in junior college. It is thus the case of the petitioner that

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though she was teaching on full time basis in the junior college,

her approval however was granted as an assistant teacher in the

secondary school. The petitioner was only given a teaching

allowance for the assignment in the junior college.

6. The petitioner contends that after completion of her

probationary period which came to an end on 02/07/2001, she

ceased to teach the secondary school with effect from

02/07/2001. She was, however, appointed as an assistant

teacher in the junior college by a fresh order of appointment

with effect from 12/06/2001. It is the thus the petitioner's case

that she has been working as an assistant teacher in the third

respondent - junior college with effect from 12/06/2001 till the

date of filing of the Petition as a confirmed full time assistant

teacher on the pay scale applicable to an assistant teacher of the

secondary school. She has been regularly teaching for 17.20

hours per week from July 2001 till the date of filing of the

Petition (01/04/2003).

7. During the pendency of the Petition, further

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affidavits came to be filed by the petitioner. Learned Counsel for

the petitioner invited our attention to the various approval

orders dated 21/12/2002, 06/09/2007, 02/09/2008 and

23/09/2009 indicating that workload of the petitioner in the

junior college was 17 hours and 20 minutes. Learned Counsel

for the petitioner also pointed out the records of the Deputy

Director of the Education dated 21/12/2002 and 18/10/2003

indicating the workload of the petitioner as 17.20 hours per

week. Learned Counsel for the petitioner contends that even

after filing of the Petition as indicated above, the petitioner

continues to work in the junior college having workload of

17.20 hours which is a full time workload of teacher in the

junior college. Learned Counsel for the petitioner further

pointed out that she is due to retire in October 2018.

8. Learned AGP on behalf of the respondents No.1 & 2

invited our attention to the affidavit-in-reply dated 15/06/2004

filed by the Assistant Director of Education, Pune region, Pune.

The stand of the respondent No.2 is that the petitioner was

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appointed in the secondary school as an assistant teacher. The

appointment of the petitioner is approved in the said secondary

section in the S.S.C. D.Ed scale in 13/07/1999 and B.A. B.Ed

scale with effect from 01/03/2003 plus special pay of Rs.250/-

only per month for teaching in the junior college. According to

respondent No.2, the petitioner was possessing required

qualification to teach in the junior college and the said college

was in need of a teacher to teach Gujrathi language. She was

also appointed in the said college on 17/07/1999 alongwith

special allowance of Rs.125/- per month for teaching in the

junior college. It is material to reproduce the stand of

respondent No.2 as stated in paragraph 2 of the affidavit.

"I say that the petitioner has been appointed vide appointment order dated 03/07/1999, as Assistant teacher in secondary section of the respondent No.3 w.e.f 03/07/1999 and her services were approved by the Education Officer, Zilla Parishad, Pune in the scale of Rs.4500-125-7000 i.e. in the S.S.C. D.Ed scale on 13/07/1999. I say that as the petitioner was possessing required qualification to teach in Junior College classes and the said college was in need of a teacher to teach Gujarati language, she was also appointed in the said college w.e.f 17/07/1999 along with special pay of Rs.125/- only p.m. for teaching in junior college. I say that the petitioner was given B.A.B.Ed scale w.e.f. 01/03/2003 (i.e. 5500-9000) plus special pay of Rs.250/- only per month for teaching in the Junior College. I say that there was no full work load available when she was appointed in the secondary section but at present the petitioner has full work- load at Junior College. I say that since the petitioner is appointed

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in secondary section, therefore she is entitled for pay scale of Rs.5500-9000 and Rs.250/- per month only as special pay for teaching in the junior college. I say that the petitioner was not appointed as full time Junior College Teacher, therefore she cannot be paid salary as per pay-scale prescribed by the Government for that post."

(emphasis supplied)

9. It is further stand of the respondent No.2 that as per

approval orders of the petitioner, she was assigned lectures for 4

hours per week for teaching in junior college and not 11.20

hours as alleged and rest of the time she was teaching in the

secondary section. According to the respondent No.2 since the

petitioner's initial appointment was of the secondary section as a

full time teacher in clear vacancy, therefore, she cannot be paid

pay scale of a teacher in the junior college @ Rs.7225-125-

11050/- as alleged. Respondent No.2 has also relied upon Rule

20 of the Maharashtra Employees of Private Schools Act

indicating that as a full time teacher in secondary or junior

college or junior college of education who is teaching in classes

with an average enrollment of 30 or less number of the pupils

shall do actual teaching work for 19 hours per week. It is the

stand of the respondent No.2 that the petitioner is not entitled

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to pay scale of an assistant teacher of the junior college.

According to respondent No.2 if the petitioner wants to be

appointed in the junior college, she can be appointed as a

Shikshan Sevak on contract basis as per Government Resolution

passed by the Government in the year 2000.

10. Affidavit-in-reply is filed on behalf of respondents

No.3 & 4. It is categoric stand of the respondent No.4 that the

petitioner is appointed in secondary school only and is given

additional allowance for working in the junior college.

According to respondent No.4, there was no workload available

in the junior college to make independent appointment to teach

Gujrathi subject nor any such post was advertised. The

petitioner was never given any order of appointment to work in

the junior college as an assistant teacher on full time basis.

Respondent No.4 has in paragraph 9 of the affidavit stated the

actual workload discharged by the petitioner in the year 2001-

02 and 2002-03. The actual workload in the junior college for

the year 2001-02 & 2002-03 is mentioned as 17.20 and 16.20

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hours respectively. For these years in the high school, actual

workload discharged by the petitioner is shown as nil.

According to respondent No.4, the petitioner was granted

approval as an assistant teacher in the junior college and

therefore she cannot claim the benefit of teaching staff in junior

college. In fact, it is the petitioner who had addressed a letter

dated 21/05/2004 to the respondent No.4 wherein she has

categorically stated that she has no claim against respondents

No.3 & 4 and her fight is only against respondents No.1 & 2. It

is therefore submitted on behalf of respondent No.4 that the

petitioner was working in the secondary school with some

workload of junior college and her appointment of assistant

teacher is approved for the secondary school and therefore she

cannot claim the benefit of a teacher working in the junior

college.

11. We have given our anxious consideration to the rival

contentions advanced on behalf of the petitioner and

respondents. The petitioner was appointed as an assistant

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teacher by an order dated 03/07/1999 in the secondary school

on probation for two years. Thereafter on 13/07/1999 within a

period of 10 days, she was appointed as an assistant teacher in

the junior college on temporary basis with a rider that as she is

appointed full time teacher at secondary level and hence, she is

entitled to junior college teaching allowance of Rs.125/-. It is

not disputed that by communication dated 27/09/2000, the

respondents No. 3 & 4 had requested respondent No.2 to give

the petitioner appointment in the junior college as full time

teacher for the year 1999-2000 and consecutive years. It,

however, appears that the proposal of the respondent No.4 for

appointing the petitioner as full time teacher with the

respondent No.3- junior college was not accepted and the

petitioner's approval continued as an assistant teacher with the

secondary school.

12. The petitioner has come up with a specific case that

she is not teaching in the secondary school as an assistant

teacher from 02/07/2001. Since 02/07/2001, the petitioner is

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working on full time basis in the junior college. However, she

was paid only special allowance and her approval continued to

be that of an assistant teacher in the secondary school and

salary was paid accordingly.

13. We have gone through the approval orders produced

on record. The approvals granted by the Education Department

clearly indicate that from the year 2000 onwards, the petitioner

has been discharging workload of 17.20 hours in the junior

college, the same is however on payment to the petitioner a

special allowance of Rs.125/-. In fact in the affidavit filed by

respondents No.3 & 4 in the chart produced at paragraph 9, it is

categorically mentioned that in the year 2001-02 and 2002-03,

the actual workload discharged by the petitioner in the high

school is nil. We therefore find substance in the contention of

the petitioner that she has ceased to discharge her workload in

the secondary school with effect from 02/07/2001 and was

discharging her workload in the junior college. For the

academic year 2001-02 onwards the actual workload discharged

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by the petitioner in the junior college is in the range of 17.20

hours per week. The approval orders which are placed on

record indicate that the teachers working in the junior college

who are discharging the workload of 17.20 hours are placed in

the pay scale of Rs.7225 - 11050/- and they are shown to be

working as full time teachers. One such approval is dated

02/09/2008. The approval orders of teachers working in the

junior college reflect that the petitioner is discharging workload

of 17.20 hours for which she is paid a special allowance,

obviously because her regular approval is that of a full time

assistant teacher in the secondary school.

14. In these circumstances, when the approvals of the

teachers working with the respondent No.3 - junior college who

are discharging the workload of 17.20 hours per week are

treated as full time teachers, there is no reason why the

petitioner should be deprived of this benefit. The petitioner is

working in the junior college discharging workload of 17.20

hours right from 02/07/2001 till date.

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15. The affidavit-in-reply filed by the Assistant Director

of the Education also mentions that as on the date of filing of

the affidavit on 15/06/2004, the petitioner has full workload at

the junior college. The approvals issued by respondent No.2 at

least till the year 2010 annexed along with the affidavit dated

03/04/2014 filed by the petitioner indicates that she is

discharging workload of 17.20 hours in the junior college.

Though the respondents No.3 & 4 have taken a stand at

paragraph 32(b) of reply filed on 10/06/2015 that the

petitioner has been working for only 4 hours per week as an

assistant teacher in the junior college and failed to fulfill

criteria of having workload of 17.20 hours per week, the stand

can only be stated to be rejected as the approval orders of

teacher working in the junior college from 2001 right upto 2010

clearly indicate that the petitioner's workload is 17.20 hours.

All other teachers working in the junior college with the

workload of 17.20 hours are granted the pay scale of Rs.7225-

11050/-.

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16. In our opinion, it would be unfair if the

petitioner is deprived the benefit of the pay scale as a teacher of

the junior college. The material on record in the form of

approvals granted by the Education Department clearly indicate

that from 02/07/2001 at least till 30/04/2010, the petitioner

was discharging workload of 17.20 hours per week for which

she was only paid special pay of Rs.125/- per month (for

teaching in the junior college) in addition to the pay scale of an

assistant teacher of secondary school. The petitioner is not

teaching in the secondary school from 02/07/2001 as is clear

from the averments made in the Petition and also the stand

taken by the respondents No.3 & 4 in the affidavit-in-reply

wherein it is categorically stated that in the years 2001-02 and

2002-03, the actual workload discharged by the petitioner in the

high school is nil. The full time teachers in the junior college

who discharge a workload of 17.20 hours and to whom

approval has been granted (not being Shikshan Sevak) are paid

in the pay scale of Rs.7225/- to Rs.11050/-. The petitioner is

due to retire in October 2018. Even the respondents No.1 & 2

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in the affidavit have stated that the petitioner has full workload

at junior college. The statement is substantiated by approvals

which are on record indicating the full workload discharged by

the petitioner in the junior college.

17. In this view of the matter, merely because the

petitioner's husband has written a letter to respondents No.3 &

4 that the petitioner would ensure no monetary loss is caused to

the respondents No.3 & 4 is no justification to deny the

petitioner the pay scale of teacher of the junior college the post

in which she is teaching since 02/07/2001.

18. It is the primary responsibility of the respondents

No.3 & 4 to pay to the petitioner the pay scale of a teacher of

the junior college with effect from 02/07/2001. Since the

petitioner has received the salary of an assistant teacher in the

secondary school and special allowance for teaching in the

junior college, in these circumstances, the petitioner would be

entitled to the difference of the arrears thereof. Respondent

No.3 are at liberty to apply to respondents No.1 & 2 for

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reimbursement in accordance with the prevailing rules and if

permissible under law. If such an application is made by

respondents No.3 & 4 for reimbursement, the same may be

considered by respondent No.2 - Deputy Director of Education

on its own merits and in accordance with law. Hence the

following order.

O R D E R

i) Respondents No.3 & 4 are directed to pay to the petitioner the scale of Rs.7225-11050/- of teacher in the junior college with effect from 02/07/2001 and also pay the difference in the gross emoluments under the said pay scale and pay actual drawn by the petitioner from 02/07/2001 till the date of actual payment within a period of 8 weeks from today.

ii) Respondents No.3 & 4 may apply to respondent No.2 -

Deputy Director of Education, Pune region, Pune for reimbursement and in the event such an application is made, respondent No.2 to consider the same on its own merits and in accordance with law.

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iii) Rule is accordingly made absolute with no order as to costs.

 (M.S.KARNIK, J.)                                       ( A.A.SAYED, J.)