Surekha D/O Anant Kumbhar vs The State Of Maharashtra Through ...
2021 Latest Caselaw 9584 Bom

                                                   18&19-WP-168&169-21-Jt.doc

Sharayu Khot.
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 168 OF 2021


     Sandip s/o Dilip Thorat,
     Age : 36 years, Occu : Service as
     Assistant Teacher, R/o. Khutbav,
     Tq. Daund, Dist. Pune                             ...Petitioner

             Versus

     1.    The State of Maharashtra
           Through its Principal Secretary,
           School Education Department,
           Mantralaya, Mumbai - 32.
     2.    The Education Offcer Secondary),
           Zilla Parishad, Pune.
     3.    Bhairavnath Shikshan Mandal,
           Khutbav, Tq. Daund, Dist. Pune
           Through its President/Secretary
     4.    Bhairavnath Secondary and Higher
           Secondary School, Khutbav,
           Tq. Daund, Dist. Pune
           Through its Head Master.                    ...Respondents

                                        WITH
                            WRIT PETITION NO. 169 OF 2021


     Surekha d/o Anant Kumbhar
     Age : 46 years, Occup : Service as
     Assistant Teacher,
     R/o. At Post Marul - Haweli,
     Tq. Patan, Dist. Satara                           ...Petitioner

             Versus

     1.    The State of Maharashtra


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                                                                18&19-WP-168&169-21-Jt.doc

       Through its Principal Secretary,
       School Education Department,
       Mantralaya, Mumbai - 32.
 2.    The Education Offcer Secondary)
       Zilla Parishad, Satara.
 3.    Yashwant Shikshan Prasarak Mandal
       Khatade, Tq. Karad, Dist. Satara,
       Through its President/Secretary
 4.    New English School
       Kharade, Tq. Karad, Dist. Satara,
       Through its Head Master.                                    ...Respondents

                                            ----------
 Mr. Vilas S. Panpatte for the Petitioners in both WPs.
 Mr. N.C. Walimbe, Asst. GP. for the Respondent No. 1-State in
 both WPs.
 Mr. Vaibhav Sugdhare for Respondent No. 4 in both WPs.
                                            ----------

                                            CORAM :           R.D. DHANUKA &
                                                              R.I. CHAGLA, JJ.

                                            DATE         :    22 July 2021


 JUDGMENT :           Per R.I. Chagla, J)

1. Rule. Rule is made returnable forthwith.

2. The learned Counsel and learned AGP appearing for

the parties have agreed that an identical issue arises in both

these Petitions and that the outcome of the Writ Petition No.

168 of 2021 will apply to Writ Petition No. 169 of 2021.

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Statement is accepted. By consent of parties, these Petitions

are heard together fnally.

3. Petitioners in these two Petitions have sought

directions against the respective Respondent No. 2-Education

Offcer Secondary), Zilla Parishad to grant approval to the

transfer of the Petitioners as Assistant Teachers on 100% aided

division in the Respondent No. 4-School in the regular pay-

scales from the respective dates of their transfers by modifying

the approval orders and releasing the arrears of salary of the

Petitioners.

4. For the sake of convenience, the facts in Writ

Petition No. 168 of 2021 are being adverted to.

5. The Petitioner initially came to be appointed as

Assistant Teacher on unaided division in the Respondent No. 4-

School on 2nd November 2012.

6. The appointment of the Petitioner was made on a

clear vacant and sanctioned post from open category. The

Petitioner from the date of his joining was in continuous service

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in the unaided division of Respondent No. 4-School.

7. The Petitioner had forwarded proposal dated 11th

July 2014 for getting approval to the said appointment of the

Petitioner and pursuant to which the Respondent No. 2-

Education Offcer Secondary), Zilla Parishad by an order dated

14th July 2014 granted approval to the said appointment of the

Petitioner. The approval was on no grant basis on probation

period with effect from 2nd November 2012 and upon

completion of the probation period by the Petitioner,

Respondent No. 2-Education Offcer granted permanent

approval in favour of the Petitioner as Assistant Teacher on no

grant basis.

8. One post of Assistant Teacher of 100% aided basis in

the Respondent No. 4-School had became vacant on account of

the death of Shri. Kale R.J. on 1st May 2017 and considering

the seniority of the Petitioner on unaided post, the Respondent

Nos. 3 and 4 transferred the Petitioner on the 100% aided

vacant post of Assistant Teacher in the Respondent No. 4-

School.

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9. The Managing Committee of the Respondent No. 4-

School passed a Resolution dated 3rd October 2017 for effecting

such transfer of the Petitioner from unaided division to aided

division and pursuant to which the Petitioner came to be

transferred from unaided division to aided division by an order

dated 30th October 2017 with effect from 1st November 2017.

The Petitioner has thereafter joined on the said grant-in-aid

post on 1st November 2017 and has been rendering services on

the said aided post.

10. Respondent No. 4-School on 14th January

2018 forwarded proposal for getting approval to the said

transfer order of the Petitioner to the Respondent No. 2-

Education Offcer. The Respondent No. 2 by an order dated 5th

November 2018 granted approval to the transfer of the

Petitioner from 1st November 2017 on 20% grant-in-aid by

placing reliance on the Government Circular dated 28th June

2016 instead of granting such approval on 100% grant-in-aid in

regular pay-scales. Being aggrieved by the impugned order

dated 5th November 2018, this Petition has been fled.

11. Learned Counsel for the Petitioner has

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submitted that the issue arising in these Petitions is no longer

res integra. He has placed reliance upon the decisions of this

Court which have also been annexed to the Petitions and are as

follows :-

i) The decision of the Aurangabad Bench of this Court in

Nagnath Harishchandra Chavan Vs. The State of

Maharashtra & Ors.1;

ii) The decision of the Aurangabad Bench of this Court in

Dilip Venkatrao Boienar Vs. The State of Maharashtra

& Ors.2;

iii) The decision of the Principal Bench of this Court in

Mrs. Rajabai Baba Shinde Vs. The State of

Maharashtra & Ors.3;

iv) The decision of the Principal Bench of this Court in

Bajrang Sopan Jadhav & Anr. Vs. The State of

3 Writ Petition No. 3979 of 2015 along with other WP.

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Maharashtra4;

v) The decision of the Principal Bench of this Court in

Miss Devkar Dipali Kisan Vs. The State of

Maharashtra & Ors5

12. He has submitted that in a recent decision of

this Court in the case of Sagar S/o. Harichandra Bhande &

Anr. Vs. The State of Maharashtra & Ors.6 the issue arising in

these Petitions have been conclusively decided. By the

judgment and order dated 12th March 2021, this Court

directed the authorities to grant approval to all the Petitioners

as Assistant Teachers from unaided to aided division of the

concerned schools on 100% grant-in-aid in regular pay-scales

with effect from respective dates of their transfers and to

release the arrears of salary. He has submitted that the

Government Circular dated 28th June 2016 which has been

relied upon in the impugned orders, was considered by the

Division Bench of this Court in the said judgment. It was held

that when management can legally transfer an Assistant

4 Writ Petition ST) No. 4692 of 2020 along with other WP. 5 Writ Petition No. 5313 of 2017 along with companion matters 6 Writ Petition ST) No. 93919 of 2020 along with companion matters

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Teacher serving in an unaided school under the same

management to aided school, Sub-Clause 5 B) of Clause 3 of the

said Government Circular which provides for the condition that

the Petitioner shall get 20% grant-in-aid in the frst year, 40%

in the second year, 60% in third year, 80% in fourth year and

100% in ffth year, out of their regular pay instead of granting

such approval on 100% grant-in-aid from the date of their

transfer in aided division will be inapplicable.

13. It has been held by the Division Bench of this

Court in the said judgment that it is only in cases where the

State Government sanctions new post/posts on aided basis, and

those are to be flled in afresh on giving fresh appointment/

appointments, the State Government can make applicable the

formula/percentage of proportionate salary to be disbursed by

the State Government and the concerned Institutions in the

manner stated in Sub-clause 5 B) of Clause 3 of the said

Government Circular.

14. He has submitted that Respondent No. 2-

Education Offcer by granting approval vide order dated 5th

November 2018 impugned in Writ Petition No. 168 of 2021 and

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order dated 6th June 2019 impugned in Writ Petition No. 169 of

2021, only on 20% grant-in-aid and as Shikshan Sevak to the

transfer of the Petitioner from unaided division to aided

division in the same school, failed to consider that the

Petitioners had already rendered services on unaided basis as

Assistant Teacher for well over three years. The Petitioner's

transfer to the aided division of the respective Schools are on

the sanctioned post which became vacant and the said post was

already on 100% grant-in-aid basis. The Petitioners were

therefore, entitled to get approval to his transfer on aided

division of Respondent No. 4-School on 100% grant-in-aid in

regular pay-scales.

15. The learned Counsel for the Petitioners has

submitted that the Division Bench of this Court in Sagar S/o.

Harichandra Bhande & Anr. supra) has held that as the

Assistant Teacher had already completed three years' period in

the unaided post in the same school, there is no justifable

reason to ask him to work again as Shikshan Sevak on

consolidated pay for three years. It has been made clear by the

Division Bench of this Court by the said judgment that Sub-

Clause 5 A) of Clause 3 of the said Government Circular can be

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made applicable only when a teacher has not completed fve

years in service after his appointment in the school on unaided

post and he has not received approval to his services as an

Assistant Teacher on regular basis. It is only then that the

management who wishes to transfer such teacher from unaided

school to aided school, should obtain an undertaking from the

teacher to work as Shikshan Sevak on consolidated pay. He has

accordingly by placing reliance on the said judgment submitted

that Sub-Clause 5 A) of Clause 3 of the said Government

Circular is inapplicable to the case of the Petitioners who have

completed well over the fve years period on unaided post and

the Education Offcers have granted permanent approval to the

services of the Petitioners on unaided basis. Thus, the

impugned orders passed by the Respondent No. 2-Education

Offcers which rely upon the said Government Circular require

to be appropriately modifed and upon which the arrears of

salary of the Petitioner require to be released.

16. The learned AGP appearing for the

Respondent-State and the learned Counsel for the Respondent

No. 4 have not brought on record contra material to contest the

factual assertions as well as legal submissions of the

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Petitioners. There are no Affdavit in Reply fled by the

Respondents.

17. We have considered the submissions and we fnd

that the issue arising in both the Petitions have been squarely

covered by the judgment of this Court in Sagar S/o.

Harichandra Bhande & Anr. supra). The said judgment has

referred to decisions of various Division Benches of this Court

where it has been clearly held that a transfer from an unaided

post to an aided post is not a fresh appointment. It is a transfer

within the meaning of Rule 41 of the Maharashtra Employees

of Private Schools Conditions of Service) Regulation Rules,

1977. The Division Bench of this Court in paragraphs 13 and 14

of the said judgment has held as under :-

"13. When there is a vacant post in an aided school, the Institution can transfer senior most qualifed Assistant Teacher working on an unaided post to fll up the said vacancy, and if such senior most teacher is available in the same school, such post on aided basis can be offered to him. When the management can legally transfer an Assistant Teacher serving in an unaided school under the same management to aided school, there is no reason to obtain an undertaking for

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such transfer as stated in sub clause 5 B) of clause 3 of the aforesaid Circular. However, in case the State Government sanctions new post/posts on aided basis, and those are to be flled in afresh by giving fresh appointment/appointments, the State Government can make applicable the formula / percentage of proportionate salary to be disbursed by the State Government and the concerned Institutions in the manner stated in sub clause 5 B) of Clause 3 of the said Circular.

14 Upon perusal of sub clause 5 A) of clause 3 of the said Circular, which provides that, if a teacher appointed on unaided basis, has rendered less than 5 years on service, in case the management wishes to transfer such teacher from unaided school to aided school, in that case, an undertaking should be obtained from such teacher to work as Shikshan Sevak on consolidated pay, prima facie such provision appears to be attractive. However, in case the candidate is appointed on the post of Assistant Teacher after following the mandate of Section 5 of the MEPS Act, 1977, and on completion of probation period, if the Education Offcer has granted approval to his appointment on regular basis, and in case he is the senior most teacher serving on unaided basis in a school run by the same Institution, he requests for his transfer from unaided school to aided school or on aided post from unaided post in same school, and if he

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has already completed 3 years' period, there is no justifable reason to ask him to work again as Shikshan Sevak on a consolidated pay for three years. Sub-clause 5 A) of clause 3 of the said Circular can be invoked when a teacher has not completed three years period after his appointment in the school on unaided basis, and he has not received approval to his services as an Assistant Teacher on regular basis."

18. It is thus, clear from the said judgment that

Sub-Clause 5 B) of Clause 3 of the said Government Circular

can apply only in a case where the Government sanctions new

post/posts on aided basis, which are to be flled in afresh by

giving fresh appointment/appointments. It is only then that the

State Government can make applicable the formula/percentage

of proportionate salary to be disbursed by the State

Government and the concerned institutions in the manner

stated in Sub-Clause 5 B) of Clause 3 of the said Circular.

19. It is clear from these Petitions that the

respective Petitioners had rendered service on unaided basis as

Assistant Teacher in the respective Secondary Schools and

were transferred to the aided division of the respective

Secondary Schools on the basic sanctioned post which had

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become vacant on the said aided division and the said post was

already on 100% grant-in-aid basis. It has been clearly held by

the Division Bench of this Court in the case of Sagar S/o.

Harichandra Bhande & Anr. supra), where the Assistant

Teacher had already completed three years period, there is no

justifable reason to ask the Assistant Teacher to work again as

Shikshan Sevak on consolidated pay for three years. Sub-

Clause 5 A) of Clause 3 of the said Government Circular can be

invoked only where the Assistant teacher has not completed

three years period after his appointment in the school on

unaided basis and that he has not received approval to his

services as an Assistant Teacher on regular basis.

20. From the facts arising in these Petitions, the

Respondent No. 2-Education Offcer had confrmed the

Petitioners as Assistant Teachers after completion of probation

period and the Respondent No. 2-Education Offcer granted

permanent approval to the services of the Petitioner on

unaided basis. The Petitioners rendered services on unaided

basis as Assistant Teachers for well over the fve year period. It

was only then that the Petitioner was transferred from unaided

division to aided division of the Respondent No. 4-School. Since

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the Petitioners were working as Assistant Teachers under the

same Management on unaided basis at the relevant time and

their transfer was from unaided post to aided post due to the

post having become vacant, there was no need to make fresh

appointments on the post of Shikshan Sevak.

21. We are of the considered view that as the

issue arising in the present Petitions is squarely covered by the

judgment of the Division Bench of this Court in Sagar S/o.

Harichandra Bhande & Anr. supra), the Petitions are required

to be allowed. Hence, the following order.

i) Respondent No. 2-Education Offcer Secondary), Zilla

Parishad, Pune in Writ Petition No. 168 of 2021 and

Respondent No. 2-Education Offcer Secondary), Zilla

Parishad, Satara in Writ Petition No. 169 of 2021 are

directed to grant approval to the respective Petitioner

in both the Writ Petitions as "Assistant Teacher" on

100% grant-in-aid in Respondent No. 4-Schools in

regular pay-scales with effect from the respective

dates of their transfers within a period of six weeks

from today and release the arrears of salary of the

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respective Petitioners within a period of eight weeks

from today.

ii) The approval orders dated 5th November 2018 in Writ

Petition No. 168 of 2021 and 6th June 2019 in Writ

Petition No. 169 of 2021 shall be withdrawn by the

Respondent No. 2-Education Offcers in the respective

Petitions in view of directions issued in i) above.

iii) Both Writ Petitions are disposed of in the above terms.

iv) Rule is made absolute.

v) There shall be no order as to costs.

 [R.I. CHAGLA J.]                             [R.D. DHANUKA, J.]